    [Senate Hearing 112-673]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 112-673

                       TURNING THE INVESTIGATION ON THE
                              SCIENCE OF FORENSICS

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

                                    HEARING

                                   before the

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                DECEMBER 7, 2011

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

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           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                JOHN D. ROCKEFELLER IV, West Virginia, Chairman
    DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas,
    JOHN F. KERRY, Massachusetts             Ranking
    BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
    BILL NELSON, Florida                 JIM DeMINT, South Carolina
    MARIA CANTWELL, Washington           JOHN THUNE, South Dakota
    FRANK R. LAUTENBERG, New Jersey      ROGER F. WICKER, Mississippi
    MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
    CLAIRE McCASKILL, Missouri           ROY BLUNT, Missouri
    AMY KLOBUCHAR, Minnesota             JOHN BOOZMAN, Arkansas
    TOM UDALL, New Mexico                PATRICK J. TOOMEY, Pennsylvania
    MARK WARNER, Virginia                MARCO RUBIO, Florida
    MARK BEGICH, Alaska                  KELLY AYOTTE, New Hampshire
                                         DEAN HELLER, Nevada
                        Ellen L. Doneski, Staff Director
                       James Reid, Deputy Staff Director
                    Todd Bertoson, Republican Staff Director
               Jarrod Thompson, Republican Deputy Staff Director
       Rebecca Seidel, Republican General Counsel and Chief Investigator

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on December 7, 2011.................................     1
    Statement of Senator Rockefeller.................................     1
    Statement of Senator Boozman.....................................     4
    Statement of Senator Klobuchar...................................     5
    Statement of Senator Udall.......................................     6
    Statement of Senator Lautenberg..................................     6
    Statement of Senator Wicker......................................     7
    Statement of Senator Nelson......................................    41

                                   Witnesses

    John Grisham, Member, Board of Directors, Innocence Project;
      Chairman, Board of Directors, Mississippi Innocence Project....     8
        Prepared statement...........................................    10
    Constantine Gatsonis, Henry Ledyard Goddard University Professor
      and Chair, Department of Biostatistics, Program in Public
      Health, Brown University and Co-Chair, Committee on Identifying
      the Needs of the Forensic Science Community, National Research
      Council, The National Academies................................    13
        Prepared statement...........................................    16
    Geoffrey S. Mearns, Provost and Senior Vice President for
      Academic Affairs, Cleveland State University and Member,
      Committee on Identifying the Needs of the Forensic Science
      Community, National Research Council, The National Academies...    21
        Prepared statement...........................................    24
    Terry W. Fenger, Ph.D., Director, Marshall University Forensic
      Science Center.................................................    26
        Prepared statement...........................................    28

                                    Appendix

    Innocence Project, prepared statement............................    47
    Letter dated December 20, 2011 to Hon. John D. Rockefeller IV and
      Hon. Kay Bailey Hutchison from Robert N. Rodriguez, Ph.D., 2012
      President, American Statistical Association....................    50
    Letter dated March 31, 2011 to Hon. John D. Rockefeller IV from
      Robert N. Rodriguez, Ph.D., 2012 President, American
      Statistical Association........................................    51
    Letter dated March 31, 2011 to Hon. Patrick Leahy from Robert N.
      Rodriguez, Ph.D., 2012 President, American Statistical
      Association....................................................    52
    Lisa Wayne, President, on Behalf of the National Association of
      Criminal Defense Lawyers, prepared statement...................    57
    Norah Rudin, Ph.D. (Forensic Consultant) and Keith Inman, M.Crim
      (Assistant Professor, California State University, East Bay),
      prepared statement.............................................    67
    Dr. Keith B. Morris, Director of Forensic and Investigative
      Science, West Virginia University, prepared statement..........    70
    Robin T. Bowen, Interim Director, Forensic Science Initiative,
      West Virginia University, prepared statement...................    71
    Response to written questions submitted to Dr. Constantine A.
      Gatsonis by:
        Hon. John D. Rockefeller IV..................................    72
        Hon. Frank R. Lautenberg.....................................    73
        Hon. John Boozman............................................    73
    Response to written questions submitted to Geoffrey S. Mearns by:
        Hon. John D. Rockefeller IV..................................    74
        Hon. Frank R. Lautenberg.....................................    76
        Hon. John Boozman............................................    76
    Response to written questions submitted to Dr. Terry W. Fenger
      by:
        Hon. John D. Rockefeller IV..................................    77
        Hon. John Boozman............................................    78
    Letter dated September 21, 2010 from Cathy L. Lanier, Chief of
      Police, Government of the District of Columbia Metropolitan
      Police Department..............................................    84
    Presidential Citation dated August 21, 2009 from Robert J.
      Garrett, President, International Association for
      Identification.................................................    85
    Article dated May 2011 from the Marshall University Forensic
      Science Center entitled ``Excellence in Forensic Science''.....    85

             TURNING THE INVESTIGATION ON THE SCIENCE OF FORENSICS

                                  ----------

                          WEDNESDAY, DECEMBER 7, 2011

                                           U.S. Senate,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:35 p.m. in Room
    SR-253, Russell Senate Office Building, Hon. John D.
    Rockefeller IV, Chairman of the Committee, presiding.

           OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
                    U.S. SENATOR FROM WEST VIRGINIA

        The Chairman. Good afternoon. We're here today to
    investigate the science of forensics. This has been done before
    by the National Academy of Science Committee, which Dr.
    Gatsonis and Mr. Mearns served on.
        It's a huge subject and so I'm going to ask forbearance,
    because I want to explain it a little bit to give it a little
    context. And if one of you collapses in a sound sleep, I'll
    know that I've gone too long. And it isn't going to be long,
    but it's just going to be a little longer than I should have.
        OK. The criminal justice system is intimately tied to the
    practice of forensic science. Attorneys, judges, and juries all
    rely on forensic evidence presented in the courtroom to
    determine the guilt or innocence of the accused.
        For many in the public, their understanding of forensic
    science comes from the world of entertainment exclusively.
    Popular shows like CSI, NCIS give the impression that forensic
    science is nearly infallible, and not only that, but it can be
    done in 12 minutes or three, always conclusive, very high-tech.
        However, the reality is very far from the depiction. Today,
    we learn about the state of science in forensic disciplines. We
    will see that some fields, like DNA analysis, use reliable
    methods and techniques rooted in scientific research. Others,
    for the most part, arise from the law enforcement community.
    And you know, they have their place, but not backed up by
    science.
        We will also see that other fields of forensics such as
    ballistics, bite marks, fingerprints, hair follicles, all that
    kind of thing where the scientific foundation simply is not
    there, leaving the results of some analysis in doubt.
    Particularly telling in this conception about the practice of
    forensic science concerns the availability of DNA, which
    actually turns out to be only somewhere between 5 and 10
    percent, I think, of what can be used as evidence in any event.
    But as you watch some of these shows, it sounds like
    everything, that and fingerprints.
        The other 90 percent of cases, the criminal justice system
    relies on other types of analysis, including those that may not
    be scientifically sound. At the request of Congress, the
    National Academy of Sciences reviewed the state of forensic
    science in the United States. The review committee included
    members from the legal, forensic, and scientific community. And
    what they found surprised me, as we will hear in today's
    testimony, surprised some of them as well. The Committee's
    report highlighted many challenges that the forensic science
    community has. These problems were not the forensic
    practitioners themselves, a majority of whom are dedicated,
    ethical professionals doing their best possible work. Rather,
    the problem involves the science itself. For example, forensic
    analysis is often used to try to establish a direct link
    between the evidence and a specific individual. With the
    exception of DNA analysis, no forensic method has been
    demonstrated with any high degree of certainty to be able to
    establish that link, thus, I would think, putting juries at
    risk and decisions at risk.
        There are also no national standards for the language used
    in reporting outcomes and interpretation of forensic analysis.
    When an expert testifies in court that a fingerprint from a
    crime scene is, quote, consistent with the fingerprint of the
    defendant, what does that mean?
        One thing to one person and another thing to another person
    on the other side, and therefore, not so hot.
        Many disciplines in forensic science were homegrown
    exclusively for law enforcement and by law enforcement because
    they needed to bring things together, the famous match with
    fingerprints.
        Now, this is not inherently damaging. It has led to a
    symbiotic relationship between forensics and law enforcement.
        When crime labs are subject to funding and oversight
    through law enforcement, there is potential for conflicts of
    interest. It is critical that we separate the science from the
    prosecutorial jurisdiction to address both the perception and
    the reality of bias in the analysis of evidence used at trials.
        As for those working in the crime labs, the Bureau of Labor
    Statistics projects a 20 percent increase. I mean, this is huge
    in the next five or 6 years in the need for forensic
    specialists.
        But they have to be certified. Everybody else gets--before
    they can go before a courtroom, I believe Mr. Grisham has to be
    certified, if you're a nurse or if you're whatever. You have to
    be stamped official, approved.
        This is not true in forensic science. It's not true. You
    don't have to be stamped as anything, and therefore, raising
    those questions.
        But on the other hand, there's going to be this enormous
    need for forensic scientists. And we need them to be well
    trained. Forensic science students need a strong background in
    the fundamentals of science, technology, engineering, and math,
    STEM, my four favorite letters, a supply already taxed by the
    Nation's urgent need to reassert its global competitiveness in
    all kinds of other areas, so a lot of competition.
        It's both a lack of resources and expertise that makes
    educating a new generation of forensic scientists very
    difficult. Within my own state of West Virginia, we have many
    problems, but one we don't have is that we've seen firsthand
    the growth in the forensic science industry. And it didn't
    happen because we started it.
        It happened because the FBI Criminal Justice System
    Information, a division of Department of Defense, Biometrics
    Identity Management Agency. Biometrics, forensics sort of
    joined there, just a huge infusion because we're close to
    Washington and the FBI moved out. Tremendous interest developed
    in our two major universities about that.
        So their close collaborations are helping to make
    significant advances in biometrics technologies and they will
    be working even closer side by side on a daily basis once the
    new joint Biometric Technology Center is completed.
        As I say, we have two universities. They both do this and
    they do it very, very well. And that's to our advantage, which
    we need.
        This afternoon, we will hear from a panel of witnesses on
    how we can advance the science of forensics and address the
    field's most critical challenges. I think this is an absolutely
    fascinating hearing. I love it.
        I absolutely love it because it involves STEM. It involves
    the exactitude. It involves the media presentation, how our
    heads are worked on, and how, when you get the famous funny-
    looking person who finds on computers the match, there it is,
    match. And the person is virtually on their way to a cell or at
    least a trial.
        First off, we have Mr. John Grisham, a very renowned author
    and former defense attorney. Mr. Grisham serves on the Board of
    Directors of the Innocence Project, and is Chairman of the
    Mississippi Innocence Project itself, and who is very well
    acquainted, I'm sure, with the famous Fred Zane problem in West
    Virginia, where 12 people who had been in prison for a number
    of years, some of them up to 12 years, they found out that the
    forensics were incorrectly done and they were all freed.
        It's a heck of a price to pay for insufficient forensics.
        Second, we have with us the Co-chair of the National
    Academies' Committee on Identifying the Needs of the Forensic
    Science Community, Dr. Constantine Gatsonis. Dr. Gatsonis is a
    biostatistician at Brown University.
        Our third witness, Mr. Geoffrey Mearns, is the Provost of
    Cleveland State University. He's a former prosecutor and also a
    member of the National Academies' Committee on Forensic
    Science.
        Finally, we have Dr. Terry Fenger, who is Director of the
    Forensic Science Center at Marshall University in West
    Virginia. Marshall has a master of science degree program in
    forensic science. It's one of the very few in the country, as a
    matter of fact.
        And that's good for us, but not good for the country in
    this effort to meet the rigorous standards required for
    accreditation by the Forensic Science Education Program
    Accreditation Commission, which turns out to be very, very
    important.
        So that said, the--and again, you know, if you're a nurse
    and you go in to testify, you've got to be certified. You've
    got to be a stamped, reliable source of information, or any
    other type of person. Forensics? No.
        And what are we going to do about it? So I'd like to thank
    you all for being here today. I apologize to my colleagues for
    my lengthy statement, but I don't really, and I call upon my
    good colleague, Mr. Boozman.

                    STATEMENT OF HON. JOHN BOOZMAN,
                       U.S. SENATOR FROM ARKANSAS

        Senator Boozman. Thank you, Mr. Chairman, very much. And
    again, thank you for holding this afternoon's hearing. This
    really is a very important issue, not only because the field of
    forensic science is critically important to upholding our
    nation's criminal justice system, but also because the forensic
    sciences are vital in supporting homeland security, and
    counterterrorism missions, and protecting the safety of the
    public.
        I am very pleased that we are having the discussion today.
    Over the last two decades, many advances have been made in the
    field of forensic science, which has led to the prevalence of
    forensic evidence in our judicial system and courtrooms.
        These advances are particularly seen in the realm of DNA
    technology and medical identifiers, but also exist in the form
    of the many other forensic evidence identifiers.
        These types of forensic evidence are widely relied upon by
    investigators as a search for the perpetrators of crimes,
    attorneys, and judges, then in turn, juries, when assessing the
    guilt or the innocence of those suspected of crimes.
        Our courtrooms, however, are not the only venue or
    experience in the increase of forensic science. Many popular
    television shows, as the Chairman alluded to, CSI, Law and
    Order, to name a few, portray state-of-the-art forensic
    laboratories and the use of forensic evidence often as a
    central factor in their ability to solve crimes in a 60-minute
    segment.
        But in reality, crimes labs and forensic testing processes
    are substantially different from what we see on the Hollywood
    sets. In reality, from forensic botany, chemistry, and even
    anthropology, the many various fields within the broader field
    of forensics are extremely complex and unique in nature.
        Law enforcement, prosecutors, and crime labs would all
    benefit from greater research efforts. In the absence of
    greater peer review research, there are too many unknown
    variables, leaving room for error in a system on which our
    judicial integrity, national security, and public safety
    community rely so heavily.
        And while there is no doubt that we need more research and
    training to increase crime lab capacity and improve accuracy,
    precision, and reality, the purpose of this hearing is to
    discuss how best to strengthen forensic science to ensure
    reliable findings and protect the public, and how to best build
    upon existing expertise within the science and public safety
    community to ensure that we can improve forensic science in the
    most efficient and effective manner possible.
        I am looking forward to hearing from panelist Dr. Gatsonis
    and I'm also interested in hearing from Mr. Mearns on the
    impact of forensic science on the judicial system. I'm eager to
    hear from Dr. Fenger on his knowledge of forensic education, as
    well as from Mr. Grisham, a fellow Arkansan, on the tragedy of
    the wrongful convictions based on faulty forensic evidence.
        I'm also hoping to hear how we could potentially leverage
    existing initiatives within the forensic community in moving
    forward with advancing forensics. I'm hoping to explore how to
    use Federal resources to foster improvements in forensic
    sciences without reinventing the wheel.
        I once again thank all of you for being here and I echo the
    Chairman in the sense that this truly is a very important
    thing. And again, thank you for bringing it to our attention.
        The Chairman. Thank you, Senator Boozman, very much.
    Senator Klobuchar?

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Thank you very much, Mr. Chairman, for
    holding this important hearing. I want to welcome all the
    witnesses. And as a former prosecutor for 8 years, I have been
    intimately involved in these issues.
        I was smiling when I heard you talk about the CSI effect.
    When those shows came on, we actually would have several jurors
    who would acquit in cases. And afterwards, we'd ask them--a
    simple hand case, where someone had touched someone. ``Well,
    you didn't have the DNA evidence.'' We didn't have the DNA
    evidence.
        So we learned quickly to adjust and to anticipate those
    issues. But most importantly, I've worked extensively with the
    Innocent Project, Mr. Grisham, on both witness ID issues and we
    did some novel things in our county, as well as videotaping
    interrogations, which I think has been an incredibly positive
    development in our state, on both the prosecutor, police, and
    defense side.
        The issue of forensic science--if we don't have reliable
    forensic science, we can't make a case. A defense lawyer's job
    is to protect the innocent. And a prosecutor's job should also
    be to protect the innocent, as well as to prosecute the guilty.
        And so I think it's incredibly important that we have the
    most updated science and it's a vital part of our criminal
    justice system.
        In Minnesota, we created a forensic laboratory advisory
    board in 2006. We've been working to develop, among other
    things, a mandatory accreditation project for--a process for
    individual labs and certification requirements.
        But there remain great disparities and inconsistent
    practices among crime labs in the country. As the National
    Academy of Sciences report from 2009 highlights, there's a
    pressing need to improve the overall quality of forensic
    evidence across the board.
        So I am looking very forward to hearing the evidence today
    because this is about science. We shouldn't be afraid of
    science. We should embrace science. And if we have evidence
    that is flawed in some way, that doesn't meet the top
    scientific standards, then we need to change that. Otherwise,
    it calls our entire judicial system's integrity into question.
        So thank you, Mr. Chairman, for holding the hearing.
        The Chairman. Thank you very much, Senator Klobuchar and
    Senator Udall, to be followed by Senator Lautenberg.

                     STATEMENT OF HON. TOM UDALL,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Udall. Thank you, Chairman Rockefeller, and I want
    to thank you for your leadership on this issue today. I think
    it's a very important one for our committee to be addressing.
        Forensic science is a powerful tool with great potential to
    help law enforcement quickly and effectively identify who has
    committed a crime and who is innocent.
        But I'm very aware that many of the forensic tests we use
    today lack scientific validity. Our citizens, courtrooms, and
    law enforcement personnel rely on these tests. And it's
    imperative that we improve the research regarding forensic
    science and make sure we know about its limitations.
        I know, from my days as Attorney General, that it's
    imperative to have scientifically valid evidence to identify
    criminal offenders and to protect the truly innocent. And I
    look forward to hearing from our panel today on how to improve
    on the scientific validity of this important field.
        I also, again, want to thank Chairman Rockefeller and the
    witnesses who are here today. You all have done very valuable
    work for the safety and justice in our communities and I'm very
    grateful for your efforts to improve upon our criminal justice
    system.
        One of the issues that I think Senator Klobuchar mentioned
    that's very important--and I know this as a Federal prosecutor
    and then as a State Attorney General--is, with these crime
    shows, which are so prevalent in that the general public
    watches, they have an impact on juries.
        And juries view the criminal justice system in a different
    light, based on these crime shows that are out there, that are
    running on a regular basis.
        And I'm just wondering--and I hope, when we get to the
    questioning, that I'll be able to ask you about it--is, is
    there a danger there? Is there anything we can do there? Is
    there a problem? And what are the challenges?
        So with that, thank you again, Chairman Rockefeller, and I
    yield back.
        The Chairman. Yes. Absolutely. Senator Lautenberg and then
    Senator Wicker.

                  STATEMENT OF HON. FRANK LAUTENBERG,
                      U.S. SENATOR FROM NEW JERSEY

        Senator Lautenberg. Yes. Mr. Chairman, thanks very much for
    holding this hearing. And though I am not a lawyer, I am very
    conscious of what we have to do to make sure that the law
    provides the kind of exacting evidence that is required in
    cases.
        And I'm fortunate to have had a court house in Newark bear
    my name. And I worked hard to get an inscription on the plaque
    identifying the building. And my inscription said, ``The full
    measure of democracy is its dispensation of justice.''
        And--but we all know there can be no true justice if police
    and prosecutors do not have the tools that they need to fairly
    enforce our laws. And that includes tools provided by science,
    which has played an important role in our criminal justice
    system since the FBI opened its first crime lab in the 1930s.
        But the fact is, sometimes forensic science isn't really
    scientific. DNA testing is a proven method to determine a
    suspect's guilt or innocence, but the same thing cannot be said
    of other crime-solving techniques.
        And I said proven method, but we have challenged it to that
    in many instances. Scientists tell us that many forms of
    commonly-used forensics, including fingerprints, ballistics,
    firearms identification, fail to meet the most basic scientific
    standards.
        The scientific community also has expressed serious
    concerns about the quality of our country's crime labs. Now,
    there are no national standards for forensics labs or for the
    people who work in them.
        Many crime labs are forced to deal with inadequate funding,
    outdated equipment, and lengthy backlogs. In addition, these
    labs are not required to coordinate their efforts, which could
    undermine homeland security.
        And if terrorists were to attack locations in several
    states at once, there would be no guidelines for local labs to
    work together and with national homeland security experts to
    examine the evidence and share their findings. This is
    unacceptable.
        The United States must be tough on crime and terror, but
    our efforts are meaningless if shoddy science and ineffective
    crime labs hinder our ability to enforce our laws and protect
    people.
        Make no mistake. We have a lot at stake here. And as
    Americans, we take pride in having the world's fairest criminal
    justice system. But we've all heard horror stories about how
    faulty forensic evidence has sent people to jail or, worse, to
    death row.
        And every time an innocent person is put behind bars, a
    guilty person is let free to walk the streets. The bottom line
    is that we've got to do everything in our power to make sure
    only sound science is used in our criminal justice system.
        So Mr. Chairman, I look forward to hearing from today's
    witnesses about how we can do a better job protecting the
    American people, making sure wrongful convictions are the
    exception not the rule.
        And Mr. Grisham, I'm particularly pleased to welcome you
    because I was a member of the board of Cardozo Law School for
    so many years. So thank you all, however, for your work. Thank
    you, Mr. Chairman.
        The Chairman. Thank you, Senator Lautenberg. Senator
    Wicker?

                    STATEMENT OF HON. ROGER WICKER,
                     U.S. SENATOR FROM MISSISSIPPI

        Senator Wicker. Thank you, Mr. Chairman. I want to welcome
    the panel, thank them for their participation today. I know
    they're wondering if they will ever get a chance to begin
    speaking. And so I will not prolong this. I do want to thank
    the Chair for bringing this important subject matter to the
    attention of the Committee today.
        I particularly want to welcome my long-time friend, John
    Grisham. In 1987, I had the opportunity to be elected to the
    State Legislature from Mississippi. There was, in the House of
    Representatives at that time, someone who had been elected the
    term before, from DeSoto County.
        And I got to be a friend of John Grisham during my service
    in the Legislature. It is true that oftentimes, he's sat closer
    to the left side of the room and I sat closer to the right side
    of the room.
        But we had a friendship then, and maintain one today, and I
    was glad to serve with him until he had decided to go ahead and
    leave and pursue full-time writing, but at the same time, to
    speak out for issues which advanced the cause of justice.
        I've been on both sides of a criminal courtroom. I was an
    Air Force judge advocate. I have prosecuted cases. I have
    defended cases in the Air Force and also in the State courts
    back home.
        This is not a matter of left or right. It's not a matter of
    Republican or Democrat. It's not a matter of prosecution and
    defense. This is a matter, in a nation where we have an
    absolute presumption of innocence for our citizens, of getting
    it right.
        And that's what I think we're all interested in doing. And
    I think that's what this panel is all about today, so I thank
    you all, and I particularly welcome John here, and I thank you
    again, Mr. Chairman.
        The Chairman. Thank you, Senator Wicker. And Mr. Grisham,
    the floor is yours.

              STATEMENT OF JOHN GRISHAM, MEMBER, BOARD OF

            DIRECTORS, INNOCENCE PROJECT; CHAIRMAN, BOARD OF

                DIRECTORS, MISSISSIPPI INNOCENCE PROJECT

        Mr. Grisham. Thank you, Chairman Rockefeller, Ranking
    Member Boozman, my good buddy, Roger Wicker. We used to call
    him Roger. Now, of course, it's Senator Wicker. And other
    members of the Committee, I'm John Grisham. I'm with the
    Innocence Project. It's still at Cardozo Law School in New
    York. I'm a member of the Board of Directors of the Innocence
    Project.
        I'm also an author who has written about wrongful
    convictions in both fiction or in non-fictional settings. I am
    not a researcher, a scientist, or a doctor. I used to be a
    lawyer for 10 years and I spent a lot of time in the courtroom,
    primarily in criminal defense.
        I now get to create stories about lawyers, and law firms,
    and courtroom dramas, and stuff like that. My adventures as a
    writer have taken me to some interesting places, but none as
    fascinating and heartbreaking as wrongful convictions.
        When I was a law student, we were taught that the basis of
    our judicial system is the right to a fair trial. I still
    believe that and I'm sure we all do.
        But in this country, many trials are simply not fair.
    Innocent people are convicted and sent to prison, some to death
    row. At the Innocence Project in New York, in the past 20
    years, we have worked to exonerate, using exclusively DNA
    evidence, 280 inmates, innocent people, who were in prison. 17
    were on death row.
        If you take the other Innocence projects around the
    country--and they're always 44, 45, 50; they come and go--in
    the past 20 years, the total number of exonerations is
    somewhere around 850.
        Those of us who work in Innocence all believe that this is
    the tip of the iceberg. This is a small fraction of the
    innocent people who are in prison right now.
        Wrongful convictions are caused by a number of factors, all
    of which could be avoided. The most common problem is improper
    eyewitness identification. Bad forensics is number two. False
    confessions, false testimony from jailhouse snitches and
    informants, bad defense lawyering, misconduct by police and
    prosecutors, judges who are asleep at the switch.
        And these causes overlap. And you can take any wrongful
    conviction case, study it, and find four or five of these
    factors at play. In half of our exonerations, 50--a little over
    50 percent--the trials were contaminated by bad forensic
    science such as microscopic hair, bite mark analysis, fiber
    analysis, soil analysis, voice analysis, forensic practices
    that have not--not been scientifically tested.
        Witnesses present themselves to--to the court, to the jury,
    as experts in these fields and they give detailed testimony
    with scientific principles that are untested and not validated.
    It's still happening today. It happened. It's happening
    somewhere today, with tragic results.
        Faulty science is rampant in American courtrooms. It's
    procured by prosecutors, often well-meaning. It's tolerated by
    judges, offered by experts, and consumed and believed by
    jurors, in good faith.
        And in--in all fairness to the system, the courtroom is not
    the place to distinguish good science from bad. I sort of
    stumbled into this world a few years ago, when I heard the
    story of a guy named Ron Williamson.
        Ron had just died. He was my age. He lived in Oklahoma. We
    had very similar backgrounds. And he had been convicted of a
    rape and murder he did not commit. He went to death row in
    Oklahoma. He went completely insane. He came within 5 days of
    being executed.
        He got a miracle stay in 1994 and, 5 years later, working
    with the Innocence Project in New York, his DNA was tested. He
    was completely exonerated and found not guilty, walked out of
    prison in 1999.
        At the time of his trial, though, in 1988, the police and
    prosecution had virtually no physical evidence against him,
    evidence against him, because he was innocent. With the use of
    a couple of jailhouse snitches, a half-baked jailhouse
    confession, and some bad science, they got a conviction. They
    convicted Ron.
        The most damaging witness against Ron at trial was an
    expert from the state crime lab, who took the stand and, with a
    great deal of authority, explained to the jury that there were
    17 scalp and pubic hairs taken from the crime scene, 17.
        And he used all the right terms. He said that these hairs
    were microscopically consistent with the samples taken from
    Ron. Even went so far as to say there was a match, which is a
    bad word, but that word was used. Got a match.
        Prosecutor picked up on it and used it for the rest of the
    trial.
        This type of--the impact of this testimony on jurors cannot
    be overstated. These experts come in. They've got education,
    the experience, resumes, nice suits, big vocabularies, and they
    are really, really impressive to jurors who are not that
    sophisticated.
        Eleven years after this guy testified, 11 years later,
    those 17 hairs were--underwent DNA testing. Not a single one
    came from Ron Williamson.
        In researching and writing The Innocent Man, I sort of came
    aware of the scope of this problem. I joined the Board of the
    Innocence Project. And for the past 5 years, I've gone around
    the country, raising money, making speeches, raising money for
    various projects, trying to raise awareness.
        I've met a lot of exonerees, guys who spent 10, 15, 20
    years in prison for somebody else's crime. Every story is
    fascinating. Every story is compelling. Every story is
    heartbreaking.
        Every wrongful conviction goes back to the courtroom. It
    goes back to the trial and back to the testimony. And if we
    can't ensure that the testimony is accurate, then the trials
    are not going to be fair.
        Thank you. I look forward to your questions.
        [The prepared statement of Mr. Grisham follows:]

        Prepared Statement of John Grisham, Member, Board of Directors,
    Innocence Project; Chairman, Board of Directors, Mississippi Innocence
                                    Project
        Thank you Chairman Rockefeller, Ranking Member Hutchison, and
    members of the Committee. My name is John Grisham and I am a Member of
    the Board of Directors of the Innocence Project in New York. The
    Innocence Project is a national litigation and public policy
    organization dedicated to exonerating wrongfully convicted people
    through post-conviction DNA testing and reforming the criminal justice
    system to prevent future miscarriages of justice. I am also the
    Chairman of the Board of Directors at the Mississippi Innocence
    Project, an organization that is a member of the Innocence Network, an
    affiliation of organizations dedicated to providing pro bono legal and
    investigative services to individuals seeking to prove innocence of
    crimes for which they have been convicted and working to redress the
    causes of wrongful convictions. Today there are 57 of these projects
    based in the United States and nine international projects.
        I am also an author and I have written about wrongful convictions
    in both fictional and non-fictional settings. In fact, it was the
    pursuit of a good story that has led me to the world of wrongful
    convictions. Almost seven years ago, I was reading The New York Times
    and saw the obituary of Ron Williamson. Ron was a man much like me. We
    were the same age, we both dreamed of being Major League baseball
    players, we both grew up in small towns in the Bible Belt, and we both
    came from the same religious backgrounds. However, Ron was convicted of
    a rape and a murder he did not commit, was sent to death row, went
    insane, and came within five days of being executed before receiving a
    miracle reprieve.
        Ron Williamson was the second-round draft pick of the Oakland A's
    in 1972. He signed for $50,000, left his small town of Ada, Oklahoma,
    and went away in search of major league glory. Injuries soon derailed a
    promising career, as did drugs, alcohol, and women. By the time Ron was
    twenty-eight, he was showing signs of mental instability. He would
    later be diagnosed as bipolar. His drinking increased, and he found it
    difficult to keep a job. A man who had once been a local sports hero
    became a misfit around town. He had a few brushes with law enforcement
    and spent time in jail.
        In 1981, an attractive young cocktail waitress was brutally raped
    and murdered in Ada, not far from where Ron was living with his mother.
    The victim's name was Debra Carter, and she was last seen outside a
    bar, late at night, engaged in some type of confrontation with a thug
    named Glen Gore. Though Gore was well-known to the police, and the last
    person seen with the victim, the authorities in Ada failed to pursue
    him as a suspect.
        Eighteen years later, Gore's DNA would link him to the rape and
    murder of Debra Carter, and he is now serving a life sentence in
    Oklahoma.
        Five years passed after the murder and the Ada police could not
    solve the crime. Finally their investigation mistakenly led them to
    conclude that Williamson and his friend Dennis Fritz were the
    perpetrators, and arrested them, charged them with capital murder, and
    proceeded to trial.
        Since Ron Williamson was innocent, there was virtually no physical
    evidence presented against him in court. However, using false testimony
    from jailhouse snitches, a half-baked jailhouse confession, and
    unvalidated science, the prosecutor got a conviction and a death
    sentence. The most damaging testimony against Ron came from an expert--
    an analyst with the Oklahoma Bureau of Investigation. This expert
    testified that there were seventeen scalp and pubic hairs taken from
    the crime scene, and that his analysis revealed that these hairs were
    ``microscopically consistent'' with the samples taken from Ron
    Williamson and his co-defendant, Dennis Fritz. Specifically, two scalp
    hairs and two pubic hairs were ``microscopically consistent'' with
    Ron's samples and, he incorrectly testified, therefore there was a
    positive ``match.''
        Jurors typically give great weight to such testimony. They want to
    believe the authorities--the prosecutors, police, and experts called by
    the State--and when a veteran analyst who boasts of investigating
    hundreds or thousands of cases testified with great confidence about
    his or her findings, jurors believe the testimony.
        Eleven years after Ron's trial, all seventeen hairs were subjected
    to DNA testing. Not a single one came from Ron Williamson or Dennis
    Fritz.
        To this day, there are no scientifically accepted population
    statistics for the frequency of hair characteristics; thus there is no
    data proving what is rare or common. There are no uniform standards on
    the number of features on which hairs must agree before an examiner may
    declare a ``match.'' \1\ His wrongful conviction can be blamed
    primarily on the use of unreliable, unproven, untested, and unregulated
    use of hair analysis testimony.
    ---------------------------------------------------------------------------
        \1\ Strengthening Forensic Science in the United States: A Path
    Forward, Committee on Identifying the Needs of the Forensic Science
    Community, The National Academies Press (2009), p. 160. (Hereinafter
    NAS report)
    ---------------------------------------------------------------------------
        Fortunately, Ron was exonerated and released from prison in 1999.
    Needless to say, his mental health had not improved during his ordeal
    in prison and on death row, and he soon returned to his old habits. He
    died in 2004 of liver failure.
        While researching his story, I spent time with other innocent men,
    some out of prison, some still behind bars. I slowly came to realize
    that there are likely thousands of innocent people in prison, most sent
    there by the same mistakes that convicted Ron Williamson and Dennis
    Fritz. Every wrongful conviction I've studied could have been
    prevented. They are caused by a number of factors--bad eyewitness
    identification; bad defense lawyering; false confessions; false
    testimony by jailhouse snitches and informants; misconduct by the
    police and prosecutors; judges who can be either incompetent or afraid
    to make tough rulings; and bad science. These causes overlap and
    several are present in every wrongful conviction.
        Once I realized the enormity of the problem--the sheer number of
    wrongful convictions--I decided to get involved. I joined the Board of
    the Innocence Project in New York, and I helped organize the
    Mississippi Innocence Project.
        The first major case undertaken by the Mississippi Innocence
    Project involved the killings of two little girls. In the span of two
    years, the girls were abducted from their homes, raped, murdered, and
    their bodies were tossed into creeks. Their homes were in the same
    rural neighborhood. The cases were reviewed by a forensic pathologist,
    an expert witness essential in every homicide case, and by a forensic
    dentist. In addition to identifying the cause of death, forensic
    pathologists are trained to identify pattern injuries and to determine
    whether marks on the skin are injuries sustained in a struggle before
    death as opposed to the normal artifacts occasioned by decomposition of
    skin after death. If the pathologist believes he sees pattern injuries
    on the deceased consistent with bite marks, he enlists a forensic
    dentist to determine whether there is sufficient detail to include or
    exclude a suspect's dentition.
        In the autopsy report of Courtney Smith, the first victim, the
    prosecution's pathologist, who was not board certified in forensic
    pathology, incorrectly diagnosed postmortem marks on the body as adult
    bite marks occurring at or before the time of death. He also neglected
    to personally conduct the biopsy on the marks to determine whether they
    were inflicted anti-mortem or post-mortem, improperly delegating that
    responsibility to the forensic dentist. And when the results of the
    biopsy strongly indicated that the marks occurred after death, he
    testified to just the opposite. The dentist also miscalled the post
    mortem artifacts as human bite marks and erroneously claimed that the
    source of the bite marks ``could be no one but Levon Brooks.'' In the
    second case two years later, the same pathologist erroneously called
    post mortem artifacts human bite marks and claimed the marks were made
    at or before the time of death without anyone doing the necessary
    biopsy. And the same dentist, who wrongly identified Brooks as the
    source of the bite in the first case, testified that ``indeed and
    without a doubt'' the bite marks on Christine Jackson were inflicted by
    a man named Kennedy Brewer. In the first case, Levon Brooks was
    sentenced to life in prison; in the second, Kennedy Brewer was
    sentenced to death. Post-conviction DNA testing identified Justin
    Albert Johnson as the source of the semen in three-year-old Christine.
    Johnson volunteered a detailed confession to both murders leading to
    Brooks' and Brewer's exonerations.
        Although no scientific studies support the use of bite marks to
    demonstrate the positive identification of the biter,\2\ this method
    was applied to connect Levon and Kennedy to the deaths of these young
    girls. Tragically, one of those girl's lives could have been spared:
    after Levon Brooks was convicted, the real perpetrator of both murders,
    Justin Albert Johnson, remained free to kill Christine Jackson--the
    crime for which Kennedy Brewer was convicted.
    ---------------------------------------------------------------------------
        \2\ Supra note 1, at p. 176.
    ---------------------------------------------------------------------------
        These cases illustrate the consequences of a very real shortcoming
    of our criminal justice system that should concern all of us. Granted,
    these cases have some of the dramatic human elements of misconduct and
    malfeasance that also contribute to bad convictions; though in that
    sense they are the exception, not the rule. Instead, in most cases,
    people who are uninformed about the reliability of a technique make
    assertions that are, unbeknownst to them, not based on rigorous
    scientific research. They do not benefit from the educational benefits
    of a robust academic field. And they do not know that the techniques
    they rely on have never been comprehensively studied and standardized,
    and that no evaluation ever quantified their probative value.
        The development of DNA testing has allowed us to demonstrate this.
    We now know about the factual innocence of 280 Americans, 17 of who
    were sentenced to death and waiting to be executed. Research into the
    causes of wrongful conviction has revealed that the reliance on
    unvalidated and/or improper forensics is the second-greatest
    contributing factor to wrongful convictions, contributing to
    approximately 50 percent of those cases overturned by DNA testing.
        In those exonerations alone, we have had wrongful convictions based
    on unvalidated or misapplied serological (or blood type) analysis,
    microscopic hair comparisons, bite mark comparisons, shoe print
    comparisons, fingerprint comparisons, forensic geology (soil
    comparisons), fiber comparisons, voice comparisons, and fingernail
    comparisons among the many forensic disciplines that have produced
    wrongful conditions.\3\ It comes as no surprise that the National
    Academy of Science concluded: ``With the exception of nuclear DNA
    analysis, however, no forensic method has been rigorously shown to have
    the capacity to consistently, and with a high degree of certainty,
    demonstrate a connection between evidence and a specific individual or
    source.'' \4\ The overarching problem has been that all too frequently,
    non-DNA forensic disciplines have been improperly relied upon to
    connect our innocent clients to crime scene evidence.
    ---------------------------------------------------------------------------
        \3\ Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March
    2009, p. 14-15.
        \4\ Supra note 1, at p. 7.
    ---------------------------------------------------------------------------
        Just as DNA exonerations reveal inherent shortcomings in other
    forensic disciplines, the evolution and regulation of DNA as a forensic
    technique (from basic research to crime lab and to casework) contrast
    starkly with many other forensic technologies. Long before there was a
    national forensic DNA testing program, the National Institutes of
    Health and others funded and conducted extensive and relevant basic
    research and followed it with applied research. Scientists appreciated
    the challenge of transferring the technology from research lab to
    clinical lab and from clinical lab to crime lab. The forensic methods
    were validated for case work, and individual crime labs further test
    the kits and protocols for use in their own laboratory settings.
        Many non-DNA forensic practices have not been scientifically
    validated, and there is no formal scientific apparatus in place to
    scrutinize developing forensic technology. Most of the forensic
    practices used in law enforcement have no other application; they were
    developed for the purpose of investigation, prosecution and conviction
    and, because they were not developed in a scientific setting, they took
    on a life of their own without being subjected to the rigors of the
    scientific process. Essentially, the forensic practices were simply
    accepted as valid; they went online with little or no assessment of
    their robustness and reliability. No entity comparable to the Food and
    Drug Administration ever scrutinized the forensic devices and assays,
    unlike many of the devices and assays that are used in a clinical
    laboratory. And unlike clinical laboratories, no Federal statute
    requires, and no single entity sets standards for, accreditation and
    certification, so not all crime laboratories and forensic units are
    accredited, and practitioners are not required to be certified.
    Enforceable parameters for interpretation of data, report writing, and
    courtroom testimony have also never been developed.
        Unfortunately, this is a national problem. An exhaustive review of
    the Nation's DNA exonerations showed that 72 forensic analysts from 52
    different labs across 25 states had provided testimony that was
    inappropriate or that exaggerated the probative value of the evidence
    in either reports or live courtroom testimony.\5\ Again, this is not
    necessarily because they were bad actors or had any ill intention.
    Instead, look to the NAS report, which noted extensively that our
    national forensic science system does not sufficiently support
    education, training, certification, and standards for testing and
    testifying.\6\
    ---------------------------------------------------------------------------
        \5\ Supra note 1, at p. 9.
        \6\ Ibid., at p. 14-16.
    ---------------------------------------------------------------------------
        While there is research and work that establishes what needs to be
    done to improve various forensic practices, the fact is that no one has
    been able to sufficiently muster the resources nor focus the attention
    necessary to use the existing information as a launching pad to
    comprehensively improve the integrity of non-DNA forensic evidence. The
    NAS Report is the first step--and a tremendous one--toward fully
    establishing and acting upon what we already know.
        Many people believe that, at trial, a good defense lawyer and an
    effective cross-examination will enable the jury to properly assess the
    strength of forensic evidence. However, as the NAS report states and
    the post-conviction DNA exoneration cases clearly demonstrate, the
    scientific understanding of judges, juries, defense lawyers and
    prosecutors is wholly insufficient to substitute for true scientific
    evaluation and methodology. It is beyond the capability of judges and
    juries to accurately assess the minutiae of the fundamentals of science
    behind each of the various specific forensic assays in order to
    determine the truth in various cases, and it is an unfair and dangerous
    burden for us to place on their shoulders. The NAS says that ``judicial
    review, by itself, will not cure the infirmities of the forensic
    science community.''
        It is absolutely clear--and essential--that the validity of
    forensic techniques be established ``upstream'' of the court, before
    any particular piece of evidence is considered in the adjudicative
    process. For our justice system to work properly, standards must be
    developed and quality must be assured before the evidence is presented
    to the courts--or even before police seek to consider the probative
    value of such testing for determining the course of their
    investigations. There is simply no substitute for requiring the
    application of the scientific method to each forensic practice or
    technology, as well as parameters for report writing and proper
    testimony, as part of the formal system of vetting the scientific
    evidence we allow in the courtroom.
        A Federal effort is needed to ensure that the best standard and a
    single standard is implemented so that we don't have 50 states
    operating under 50 definitions of ``science.'' Forensic science in
    America needs one standard of science so we can have one standard for
    justice. It is time for a serious commitment to provide a scientific
    system of support for forensic science in order to ensure ongoing
    evaluation and review of current and developing forensic science
    techniques, technologies, practices, and devices. Likewise, we need
    both public and private industry to support the research and
    development of improved technology with an eye toward future economic
    investments that benefit the public good and the administration of
    justice. The impact of rigorous scientific research will be enormous.
        The investment of time, effort and resources necessary to deliver
    us from our false reliance on some forensic practices will pay
    tremendous dividends in terms of time, effort and resources not wasted
    by virtue of this false reliance. In short, it will make criminal
    investigations, prosecutions and convictions more accurate, and our
    public more safe--and perhaps most importantly, justice more assured.

        The Chairman. I thank you, sir, and now, we turn to Dr.
    Gatsonis, who is part of this National Academy.

            STATEMENT OF CONSTANTINE GATSONIS, HENRY LEDYARD

                GODDARD UNIVERSITY PROFESSOR AND CHAIR,

             DEPARTMENT OF BIOSTATISTICS, PROGRAM IN PUBLIC

          HEALTH, BROWN UNIVERSITY AND CO-CHAIR, COMMITTEE ON

             IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE

                 COMMUNITY, NATIONAL RESEARCH COUNCIL,

                         THE NATIONAL ACADEMIES

        Dr. Gatsonis. Senator Rockefeller, Ranking Member Boozman,
    and members of the Committee, thank you very much for this
    opportunity to summarize and discuss the findings of the
    report. This was prepared by the Committee on Identifying the
    Needs of the Forensic Science Community in the United States
    and it was done at Congressional request. I was the Co-Chair of
    the Committee, together with Judge Edwards.
        The Committee's report was issued in February 2009 and is
    titled Strengthening Forensic Science in the United States, a
    Path Forward. It's available to download from the website of
    the Academy.
        The report has generated a lot of interest. I've given a
    lot of speeches as has Judge Edwards and many members of the
    Committee. And so far, it has generated zero action.
        So this is where we are. Now, the report, as you know,
    examined both the science and the practice of the forensic
    disciplines across the country. It covered a broad range of
    issues in the forensic disciplines, from disparities in
    resources, facilities, training across the various
    jurisdictions, to lack of mandatory standardization,
    certification, and accreditation, to uneven development of the
    broad range of forensic disciplines, to various political
    realities, and so on.
        As we went through the work of this committee, we heard one
    consistent message and I'll spell it out in the report: the
    forensic science system encompassing both the research and the
    practice of the forensics has serious problems.
        The problems can be addressed only by national commitment
    to overhaul the current structure that supports the forensic
    science community in the country.
        This can only be done with effective leadership at the
    highest levels of both Federal and state Governments, pursuant
    to national standards, and with a significant infusion of
    Federal funds.
        The first recommendation in our report was the creation of
    a National Institution of Forensic Science.
        In the rest of my time today I will focus on the scientific
    underpinning of the culture and the practice of science in the
    forensic disciplines.
        So, forensic science is inherently multi-disciplinary. The
    more advanced forensic disciplines derive methods and expertise
    from across a very broad spectrum of scientific disciplines.
    For instance, nuclear DNA and mitochondrial DNA analysis came
    from molecular biology. Substance identification came from
    analytical chemistry.
        These kinds of forensic disciplines generally are based on
    solid, scientific ground because they were developed elsewhere.
    They have been validated through extensive research and they
    continue to be developed.
        Analyses based on these disciplines, if they're executed
    according to scientifically sound scientific principles, they
    can be reliable. Going beyond DNA and chemical analysis, a good
    number of forensic disciplines are trying to link patterns in
    samples from a crime scene to particular sources.
        For instance, a latent fingerprint impression, a marking on
    a bullet, a pattern of fire, a blood spatter pattern--they want
    to link those with an analogous pattern on a weapon, on a tool,
    on a finger, and so on, and so forth.
        Most of these methods of pattern analysis have been
    developed within the forensic science community over the years,
    with little input from the broader world of science. Many of
    them have been around for decades, even longer.
        That doesn't necessarily mean that they are accurate or
    they do their job right. As we state in the report, the level
    of scientific development and evaluation varies substantially
    across the forensic science disciplines. There is wide
    variability across disciplines, with regard to techniques,
    methodologies, reliability, error rates, reporting, underlying
    research, general acceptability, and the educational background
    of its practitioners.
        Addressing these problems is a very tall order. So to
    illustrate points about the scientific issues, let me just
    first discuss the case of nuclear DNA, which is being held up
    as one of the main examples of what could be scientifically
    strong, good forensics.
        DNA analysis has been developed and refined over decades in
    molecular biology. When the sample from a crime scene is
    matched to an individual using DNA analysis, we can also state
    the probability that somebody else's DNA would match that one.
        This is the so-called ``probability of random matching.''
    Typically that probability is miniscule. And importantly,
    studies have been done to assess and quantify this probability.
        There are many reasons why the science of DNA rests on
    solid ground including the extensive peer-reviewed literature,
    the continuing research behind it, the knowledge about
    probabilities of random match, and other kinds of false-
    positives. The laboratory procedures are well-specified and
    subject to validation and proficiency. And the clear and
    repeatable standards for analysis, interpretation, and
    reporting are there.
        Now DNA analysis addresses the so-called individualization
    questions, That is, ``Does a particular piece of a specimen
    come from a specific individual?'' That's the
    individualization.
        Other forensic modalities address the question of
    classification. For instance, does this piece of hair come from
    an individual from a certain background? Does this piece of
    paint come from a car of a particular make? These are the
    classification questions.
        In terms of their reliability and the accuracy in making
    individualization conclusions, it's fair to say that, with the
    exception of nuclear DNA analysis, there is a lot that we do
    not know about the other forensic disciplines.
        That doesn't mean that these other methods may never get
    there, but we don't know it at this point. The scientific work
    has not been done.
        A considerable amount of research and development is needed
    to provide rigorous evaluation of the capacity of forensic
    analysis methods to consistently and with a high degree of
    certainty demonstrate a connection between the evidence and the
    specific individual source.
        Such conclusions may be possible, but at present, we simply
    don't have the supporting evidence. I will finish in one
    second.
        In terms of reliability and accuracy of making
    classification conclusions, a number of forensic analyses show
    promise. However, even for those analyses, we don't know many
    of the facts.
        Let me just say that the research on the accuracy of the
    forensic disciplines is not rocket science. There are several
    areas of science where we do that kind of research.
        I do research in diagnostic medicine, where we evaluate
    diagnostic techniques, like imaging for lung cancer screening
    and so on.
        Well, diagnostic medicine has developed a research
    infrastructure and diagnostic procedures are being evaluated
    routinely. For instance, we know how accurate colonoscopy
    generally is. We know how accurate is digital mammography in
    identifying breast cancer. We have assessed how accurate is MRI
    to determine how extensive is a prostate cancer. We've done and
    continue to do this kind of research.
        This research has also addressed the influence of various
    factors on diagnostic accuracy and how this accuracy may vary
    across radiologists.
        Although the context of the forensic sciences is complex
    and there are substantial differences from diagnostic medicine,
    forensic science can still profit from learning from other
    disciplines and diagnostic medicine is one of them.
        I will stop here. I had several more pages, but I will stop
    here.
        [The prepared statement of Dr. Gatsonis follows:]

       Prepared Statement of Constantine Gatsonis, Henry Ledyard Goddard
    University Professor and Chair, Department of Biostatistics, Program in
    Public Health, Brown University and Co-Chair, Committee on Identifying
        the Needs of the Forensic Science Community, National Research
                        Council, The National Academies
        Chairman Rockefeller, Ranking Member Hutchison and Members of the
    Committee, thank you for the opportunity to submit written comments.
        The NAS Committee on Identifying the Needs of the Forensic Science
    Community examined both the science and the practice in the forensic
    disciplines across the country. The Committee's report, titled
    Strengthening Forensic Science in the United States, covered a broad
    range of challenges for forensic science, from disparities in
    resources, facilities and training across the country's jurisdictions;
    to lack of mandatory standardization, certification, and accreditation;
    to the uneven development of the broad range of forensic disciplines;
    to political realities and evidence admissibility issues.
        In my comments below I will concentrate on the state of the
    forensic science, which is characterized by the report as one of
    variable development across the forensic disciplines and low or non-
    existent research activity and infrastructure in many disciplines. Much
    research is needed not only to evaluate the reliability and accuracy of
    current forensic methods but also to innovate and develop them further.
    In order to achieve these goals on a national scale, an organized and
    well supported forensic science research enterprise is a key
    requirement.
        Forensic science is an inherently multidisciplinary endeavor,
    utilizing methods and techniques from other scientific areas, such as
    molecular biology and analytic chemistry, as well as methods developed
    within the forensic communities, such as the analysis of patterns from
    fingerprints and handwriting. The forensic science disciplines conduct
    analyses and are asked to provide information for a variety of purposes
    in the criminal justice process. Broadly speaking, the questions they
    address can be divided in two categories:

      a.  Can a piece of evidence be associated with a particular class of
            sources? For example, can a hair specimen collected at the
            crime scene be reliably said to come from an individual of a
            particular ethnic group? Is a paint mark left at a crime scene
            consistent with the paint used in type of car defined by model
            and production year? Does a powder cargo contain cocaine?

      b.  Can a piece of evidence be associated with an individual source?
            For example, can a particular DNA sample be reliably said to
            belong to individual X?

        The first category of questions leads to classification
    conclusions. The second leads to individualization conclusions.
    Although the goal of criminal investigations and trials is typically to
    assess the innocence or guilt of specific individuals, answers to both
    categories of questions are valuable. For example, classifying a piece
    of evidence may lead to decisions to exclude individuals from further
    consideration in the particular investigation. Moreover, the accuracy
    and overall performance of a forensic method should be judged only
    against the question it is called to address. Thus, analyses that can
    lead to classification should be evaluated on the basis of how
    correctly they classify and not on the basis of whether they can match
    a piece of evidence to a specific individual. This point may seem
    straightforward but lies at the root of many common misconceptions
    about the proper role of specific forensic analyses.
        As with all scientific methods, it is important to assess the
    probability of various errors that can be made in the course of a
    forensic analysis. In particular, we need to study the frequency of how
    often the analysis can identify the source of the information correctly
    and how often errors will be made. Borrowing terminology from
    diagnostic medicine, we need to know the sensitivity of an analysis
    (probability that the analysis will identify a trait when it is
    actually present) and the specificity (probability that the analysis
    will declare the trait is absent when it is actually absent). The
    complements of these two quantities represent the rates of two common
    types of errors. Other measures of performance such as the positive and
    the negative predictive value can also be useful to analysts. A more
    detailed discussion is presented in Chapter 4 of the report.
        A broad array of forensic disciplines is called upon to provide
    evidence in support of one or the other, or sometimes both categories
    of conclusions (classification and individualization). In Chapter 5 of
    the report the Committee presents a precis of each of the main
    disciplines, intended to summarize the state of their scientific
    underpinning and development, the way in which evidence is reported and
    used in investigations and court proceedings, and an assessment of
    current research and educational activity and needs for further
    development.
        A key finding of the Committee was the wide variability across
    forensic science disciplines with regard to the techniques and
    methodologies used, the reliability of results, the types and
    frequencies of errors that occur, the soundness of the research base,
    the general acceptability of the discipline, and the availability of
    published peer reviewed research. Some of the forensic disciplines are
    rooted in traditional science. For example, DNA was developed in
    molecular biology and substance identification uses techniques from
    analytic chemistry. Such methods are generally on solid ground because
    the validity of those methods has been established scientifically
    through past and ongoing research, there is good understanding of
    uncertainties in their conclusions, and there is continuing development
    of their methodology. If they are executed according to the principles
    of science, they can be very reliable.
        A number of other disciplines have been developed within forensic
    science, often with little input from the broader world of science. The
    goal of these analyses is to link a pattern from a crime scene--which
    may be a latent fingerprint impression, markings on a spent bullet,
    patterns from a fire, blood-spatter patterns, and so on--with analogous
    patterns from a weapon, tool, finger, etc., associated with a suspect.
        In terms of the reliability and accuracy in making
    individualization conclusions, it is fair to say that, with the
    exception of nuclear DNA analysis, there is a lot we do not know about
    other forensic disciplines. Considerably more research and development
    is needed to provide a rigorous evaluation of the capacity of a method
    to consistently, and with a high degree of certainty, demonstrate a
    connection between evidence and a specific individual or source. Such
    conclusions may be possible, but at present we simply do not have
    enough basic understanding to know. In terms of the reliability and
    accuracy in making classification conclusions, a number of forensic
    analysis methods show promise. However, even for classification
    analyses, there is only a modest amount of available research and
    systematic evaluation.
        An unfortunate corollary of the low level of research and
    evaluation in many of the forensic disciplines is a tendency to
    consider and present the results of analyses as free from error. Such a
    disposition would be unthinkable in the context of scientific research
    and practice. It is therefore imperative to foster, encourage, and
    ultimately require the adoption and continued development of scientific
    methods and practices across the forensic disciplines. A body of
    research is required to assess the accuracy and reliability of analyses
    in many of the forensic disciplines and to address the impact of
    sources of variability and potential bias. These disciplines need to
    develop rigorous protocols to guide subjective interpretations and
    pursue equally rigorous research and evaluation programs.
        The development of scientific research and a scientific culture in
    the forensic disciplines is not needed to evaluate currently used
    methods and practices. It is indeed a precondition for the evolution of
    these disciplines and for the development of new methods that address
    the evolving needs of the legal system.
        In parallel to an analysis of the science of the forensic
    disciplines, the Committee undertook an examination of the practice in
    such disciplines across the country. As described in the report, there
    are great disparities among existing forensic science operations in
    Federal, state, and local law enforcement jurisdictions and agencies.
    This is true with respect to funding, access to analytical
    instrumentation, the availability of skilled and well-trained
    personnel, and certification, accreditation, and oversight. As a
    result, it is not easy to generalize about current practices within the
    forensic sciences community. It is clear, however, that any approach to
    overhauling the existing forensic science system needs to address and
    help minimize the community's current fragmentation and inconsistent
    practices.
        The fragmentation problem is compounded because operational
    principles and procedures for many forensic disciplines are not
    standardized or embraced, either between or within jurisdictions. There
    is no uniformity in the certification of forensic practitioners or in
    the accreditation of crime laboratories. Indeed, many jurisdictions do
    not require forensic practitioners to be certified, and many forensic
    science disciplines have no mandatory certification programs. Moreover,
    the accreditation of crime laboratories is not required in most
    jurisdictions. Often, there are no standard protocols governing
    forensic practice in a given discipline. And, even when protocols are
    in place, they may be vague and not enforced in any meaningful way. In
    short, the quality of forensic practice in most disciplines varies
    greatly because of the absence of adequate training and continuing
    education, rigorous mandatory certification and accreditation programs,
    adherence to robust performance standards, and effective oversight.
    These shortcomings obviously pose a continuing and serious threat to
    the quality and credibility of forensic science practice.
        I will close with a review of the Committee's recommendations. The
    Committee's major recommendation is that Congress should establish and
    appropriate funds for an independent Federal entity, the National
    Institute of Forensic Sciences, or NIFS. Such a Federal body will: (1)
    bolster our ability to more accurately identify true perpetrators and
    exclude those who are falsely accused; (2) improve our ability to
    effectively respond to, attribute, and prosecute threats to homeland
    security; and (3) reduce the likelihood of convictions resting on
    inaccurate data.
        In addition to this major recommendation, the Committee offers
    several additional specific recommendations regarding the separation of
    forensic science from law enforcement, addressing training and
    educational needs, improving certification and accreditation
    requirements, reforming the medicolegal death investigation system,
    creating interoperable fingerprint databases, and enhancing the role
    and quality of the forensic sciences in homeland security.
        In particular

        Recommendation #2 highlights the need for standardized
            terminology and reporting of the results of forensic analyses.

        The National Institute of Forensic Science (NIFS), after reviewing
    established standards such as ISO 17025, and in consultation with its
    advisory board, should establish standard terminology to be used in
    reporting on and testifying about the results of forensic science
    investigations. Similarly, it should establish model laboratory reports
    for different forensic science disciplines and specify the minimum
    information that should be included. As part of the accreditation and
    certification processes, laboratories and forensic scientists should be
    required to utilize model laboratory reports when summarizing the
    results of their analyses.

        Recommendation #3 addresses research needs in the forensic
            sciences.

        Research is needed to address issues of accuracy, reliability, and
    validity in the forensic science disciplines. The National Institute of
    Forensic Science (NIFS) should competitively fund peer-reviewed
    research in the following areas:

      (a)  Studies establishing the scientific bases demonstrating the
            validity of forensic methods.

      (b)  The development and establishment of quantifiable measures of
            the reliability and accuracy of forensic analyses. Studies of
            the reliability and accuracy of forensic techniques should
            reflect actual practice on realistic case scenarios, averaged
            across a representative sample of forensic scientists and
            laboratories. Studies also should establish the limits of
            reliability and accuracy that analytic methods can be expected
            to achieve as the conditions of forensic evidence vary. The
            research by which measures of reliability and accuracy are
            determined should be peer reviewed and published in respected
            scientific journals.

      (c)  The development of quantifiable measures of uncertainty in the
            conclusions of forensic analyses.

      (d)  Automated techniques capable of enhancing forensic technologies.

        Recommendation #4 urges independence of forensic
            laboratories from law enforcement and prosecutorial offices.

        To improve the scientific bases of forensic science examinations
    and to maximize independence from or autonomy within the law
    enforcement community, Congress should authorize and appropriate
    incentive funds to the National Institute of Forensic Science (NIFS)
    for allocation to state and local jurisdictions for the purpose of
    removing all public forensic laboratories and facilities from the
    administrative control of law enforcement agencies or prosecutors'
    offices.

        Recommendation #5 emphasizes the need for assessing and
            minimizing bias and human error.

        The National Institute of Forensic Science (NIFS) should encourage
    research programs on human observer bias and sources of human error in
    forensic examinations. Such programs might include studies to determine
    the effects of contextual bias in forensic practice (e.g., studies to
    determine whether and to what extent the results of forensic analyses
    are influenced by knowledge regarding the background of the suspect and
    the investigator's theory of the case). In addition, research on
    sources of human error should be closely linked with research conducted
    to quantify and characterize the amount of error. Based on the results
    of these studies, and in consultation with its advisory board, NIFS
    should develop standard operating procedures (that will lay the
    foundation for model protocols) to minimize, to the greatest extent
    reasonably possible, potential bias and sources of human error in
    forensic practice. These standard operating procedures should apply to
    all forensic analyses that may be used in litigation.

        Recommendation #6 addresses the need for uniform standards
            and adoption of best practices in forensic laboratories across
            the country.

        To facilitate the work of the National Institute of Forensic
    Science (NIFS), Congress should authorize and appropriate funds to NIFS
    to work with the National Institute of Standards and Technology (NIST),
    in conjunction with government laboratories, universities, and private
    laboratories, and in consultation with Scientific Working Groups, to
    develop tools for advancing measurement, validation, reliability,
    information sharing, and proficiency testing in forensic science and to
    establish protocols for forensic examinations, methods, and practices.
    Standards should reflect best practices and serve as accreditation
    tools for laboratories and as guides for the education, training, and
    certification of professionals. Upon completion of its work, NIST and
    its partners should report findings and recommendations to NIFS for
    further dissemination and implementation.

        Recommendation #7 stresses the need for mandatory
            accreditation and certification.

        Laboratory accreditation and individual certification of forensic
    science professionals should be mandatory, and all forensic science
    professionals should have access to a certification process. In
    determining appropriate standards for accreditation and certification,
    the National Institute of Forensic Science (NIFS) should take into
    account established and recognized international standards, such as
    those published by the International Organization for Standardization
    (ISO). No person (public or private) should be allowed to practice in a
    forensic science discipline or testify as a forensic science
    professional without certification. Certification requirements should
    include, at a minimum, written examinations, supervised practice,
    proficiency testing, continuing education, recertification procedures,
    adherence to a code of ethics, and effective disciplinary procedures.
    All laboratories and facilities (public or private) should be
    accredited, and all forensic science professionals should be certified,
    when eligible, within a time period established by NIFS.

        Recommendation #8 calls for uniform quality control and
            quality assurance programs.

        Forensic laboratories should establish routine quality assurance
    and quality control procedures to ensure the accuracy of forensic
    analyses and the work of forensic practitioners. Quality control
    procedures should be designed to identify mistakes, fraud, and bias;
    confirm the continued validity and reliability of standard operating
    procedures and protocols; ensure that best practices are being
    followed; and correct procedures and protocols that are found to need
    improvement.

        Recommendation #9 calls for a national code of ethics for
            forensic scientists

        The National Institute of Forensic Science (NIFS), in consultation
    with its advisory board, should establish a national code of ethics for
    all forensic science disciplines and encourage individual societies to
    incorporate this national code as part of their professional code of
    ethics. Additionally, NIFS should explore mechanisms of enforcement for
    those forensic scientists who commit serious ethical violations. Such a
    code could be enforced through a certification process for forensic
    scientists.

        Recommendation #10 calls for major emphasis on graduate
            education in the forensic sciences.

        To attract students in the physical and life sciences to pursue
    graduate studies in multidisciplinary fields critical to forensic
    science practice, Congress should authorize and appropriate funds to
    the National Institute of Forensic Science (NIFS) to work with
    appropriate organizations and educational institutions to improve and
    develop graduate education programs designed to cut across
    organizational, programmatic, and disciplinary boundaries. To make
    these programs appealing to potential students, they must include
    attractive scholarship and fellowship offerings. Emphasis should be
    placed on developing and improving research methods and methodologies
    applicable to forensic science practice and on funding research
    programs to attract research universities and students in fields
    relevant to forensic science. NIFS should also support law school
    administrators and judicial education organizations in establishing
    continuing legal education programs for law students, practitioners,
    and judges.

        Recommendation #11 calls for the establishment of medical
            examiner offices across the country and the eventual
            elimination of existing coroner offices.

        To improve medicolegal death investigation:

      (a)  Congress should authorize and appropriate incentive funds to the
            National Institute of Forensic Science (NIFS) for allocation to
            states and jurisdictions to establish medical examiner systems,
            with the goal of replacing and eventually eliminating existing
            coroner systems. Funds are needed to build regional medical
            examiner offices, secure necessary equipment, improve
            administration, and ensure the education, training, and
            staffing of medical examiner offices. Funding could also be
            used to help current medical examiner systems modernize their
            facilities to meet current Centers for Disease Control and
            Prevention recommended autopsy safety requirements.

      (b)  Congress should appropriate resources to the National Institutes
            of Health (NIH) and NIFS, jointly, to support research,
            education, and training in forensic pathology. NIH, with NIFS
            participation, or NIFS in collaboration with content experts,
            should establish a study section to establish goals, to review
            and evaluate proposals in these areas, and to allocate funding
            for collaborative research to be conducted by medical examiner
            offices and medical universities. In addition, funding, in the
            form of medical student loan forgiveness and/or fellowship
            support, should be made available to pathology residents who
            choose forensic pathology as their specialty.

      (c)  NIFS, in collaboration with NIH, the National Association of
            Medical Examiners, the American Board of Medicolegal Death
            Investigators, and other appropriate professional
            organizations, should establish a Scientific Working Group
            (SWG) for forensic pathology and medicolegal death
            investigation. The SWG should develop and promote standards for
            best practices, administration, staffing, education, training,
            and continuing education for competent death scene
            investigation and postmortem examinations. Best practices
            should include the utilization of new technologies such as
            laboratory testing for the molecular basis of diseases and the
            implementation of specialized imaging techniques.

      (d)  All medical examiner offices should be accredited pursuant to
            NIFS-endorsed standards within a time-frame to be established
            by NIFS.

      (e)  All Federal funding should be restricted to accredited offices
            that meet NIF-endorsed standards or that demonstrate
            significant and measurable progress in achieving accreditation
            within prescribed deadlines.

      (f)  All medicolegal autopsies should be performed or supervised by a
            board certified forensic pathologist. This requirement should
            take effect within a time-frame to be established by NIFS,
            following consultation with governing state institutions.

        Recommendation #12 stresses the need to achieve
            interoperability of fingerprint data systems across the
            country.

        Congress should authorize and appropriate funds for the National
    Institute of Forensic Science (NIFS) to launch a new broad-based effort
    to achieve nationwide fingerprint data interoperability. To that end,
    NIFS should convene a task force comprising relevant experts from the
    National Institute of Standards and Technology and the major law
    enforcement agencies (including representatives from the local, state,
    Federal, and, perhaps, international levels) and industry, as
    appropriate, to develop:

      (a)  standards for representing and communicating image and minutiae
            data among Automated Fingerprint Identification Systems. Common
            data standards would facilitate the sharing of fingerprint data
            among law enforcement agencies at the local, state, Federal,
            and even international levels, which could result in more
            solved crimes, fewer wrongful identifications, and greater
            efficiency with respect to fingerprint searches; and

      (b)  baseline standards--to be used with computer algorithms--to map,
            record, and recognize features in fingerprint images, and a
            research agenda for the continued improvement, refinement, and
            characterization of the accuracy of these algorithms (including
            quantification of error rates).

        Finally, Recommendation #13 calls for preparedness of
            forensic scientists and laboratories to address homeland
            security needs.

        Congress should provide funding to the National Institute of
    Forensic Science (NIFS) to prepare, in conjunction with the Centers for
    Disease Control and Prevention and the Federal Bureau of Investigation,
    forensic scientists and crime scene investigators for their potential
    roles in managing and analyzing evidence from events that affect
    homeland security, so that maximum evidentiary value is preserved from
    these unusual circumstances and the safety of these personnel is
    guarded. This preparation also should include planning and preparedness
    (to include exercises) for the interoperability of local forensic
    personnel with Federal counterterrorism organizations.
        In the two years since the release of the report I have seen a lot
    of interest in its content and recommendations. However I have not seen
    major progress in implementing any of them. Specifically with respect
    to the first and most central recommendation, I understand that the
    current fiscal environment makes the establishment and funding of a new
    Federal agency challenging. Short of this, I think there is much
    Congress could still do and I urge you not to allow the current fiscal
    environment to be a reason to undertake any forensic science reform. As
    one example, I believe that the National Institute of Standards and
    Technology (NIST) could serve as an incubator for NIFS as long as
    Congress acts in several years to make NIFS a fully independent agency.
    I note that this is the position of the American Statistical
    Association (ASA), of which I am a fellow: http://www.amstat.org/
    outreach/pdfs/RockefellerForensicScience.pdf. I also not the ASA Board
    of Directors approved a statement endorsing the Strengthening Forensic
    Science report: http://www.amstat.org/outreach/pdfs/
    Forensic_Science_Endorsement.pdf.
        In closing, I would summarize the Committee's work by saying that
    the Committee studied the science and practice of the forensic
    disciplines in the country and decided that a major buildup of the
    scientific enterprise and a massive overhaul of the forensic system are
    needed in order to meet the needs of the country, current and future.

        The Chairman. I wish you to go on. You were fascinating. We
    will get back. Mr. Geoffrey Mearns, also a member of this
    extraordinary group that awakened, hopefully, at least part of
    the nation, you're on.

          STATEMENT OF GEOFFREY S. MEARNS, PROVOST AND SENIOR

             VICE PRESIDENT FOR ACADEMIC AFFAIRS, CLEVELAND

               STATE UNIVERSITY AND MEMBER, COMMITTEE ON

             IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE

                 COMMUNITY, NATIONAL RESEARCH COUNCIL,

                         THE NATIONAL ACADEMIES

        Mr. Mearns. Good afternoon, Mr. Chairman, Ranking Member
    Boozman, and the other members of the Committee. My name is
    Geoff Mearns and I am the Provost and Senior Vice President for
    Academic Affairs at Cleveland State University.
        As the Chair said, I had the privilege of serving with Dr.
    Gatsonis on the NAS committee. After more than two years of
    work, our committee issued the report that Dr. Gatsonis has
    summarized very briefly. As a former Federal prosecutor, I
    believe that Congress should pass legislation that implements
    all of the recommendations in our report.
        Implementing these recommendations will advance the
    principal goal of our report, which is to assist law
    enforcement officials in accurately identifying and fairly
    convicting people who commit crimes.
        In order to understand fully why I believe Congress should
    pass this legislation that embodies these recommendations, it
    is important to understand how my personal views of forensic
    science evolved during the two-year period in which I served on
    the NAS committee.
        I believe my own growth may help others to reconsider some
    of their pre-existing views about forensic science.
        Before becoming Dean of the Cleveland-Marshall College of
    Law at Cleveland State in July 2005, I practiced law and tried
    criminal cases for more than 15 years. My trial experience
    included approximately 9 years as a Federal prosecutor, as well
    as 7 years as a criminal defense lawyer.
        While serving in the Justice Department, I had several
    positions as an Assistant United States Attorney for the
    Eastern District of New York, I was chief of the organized
    crime and racketeering section.
        I then became the first Assistant United States Attorney
    for the Eastern District of North Carolina. And I completed my
    Justice Department career as Special Attorney to United States
    Attorney Janet Reno.
        In that capacity, I had the privilege of assisting in the
    representation of the United States in the successful
    prosecution of Terry Nichols for his role in the Oklahoma City
    bombing.
        As a Federal prosecutor, I tried more than 20 criminal
    cases. As a result, I gained substantial experience preparing
    and examining expert witnesses from various forensic science
    disciplines. I questioned chemists who analyzed suspected
    narcotics. I questioned technicians who compared tool marks. I
    questioned fingerprint examiners and handwriting experts.
        In the Nichols case, I presented expert testimony regarding
    the chemical composition of plastic fragments that were found
    in the rubble of the Murrah Federal Building in order to
    establish a link between that evidence and large plastic drums
    that were seized from Mr. Nichols.
        Based on that experience, I began my service on the NAS
    committee with two fundamental assumptions about forensic
    science.
        First, I assumed that the vast majority of forensic science
    disciplines were well-grounded in scientific research and
    scientific methodologies.
        Second, I assumed that forensic science analysts followed
    uniform processes and procedures to ensure the accuracy and
    reliability of their tests and their trial testimony.
        In short, I had faith in the scientific expertise of the
    practitioners and I had faith in the scientific validity of the
    tests and methodologies that they used.
        During the two-year period in which I served on the NAS
    committee, my views about forensic science, generally, and some
    of the specific disciplines, changed significantly. I came to
    realize that there was not nearly enough genuine science to
    validate many forensic science disciplines.
        I also come to realize that these disciplines--that these
    deficiencies were impeding law enforcement's efforts to
    identify and apprehend criminals.
        I became increasingly concerned that these deficiencies
    were adversely affecting the fairness of the criminal justice
    system and undermining the accuracy and reliability of verdicts
    in criminal cases.
        There were several presentations that challenged my
    assumptions about forensic science and made me realize that
    significant changes were needed. I would be happy to relate one
    or two experiences if the Committee is interested in hearing
    more.
        Now, each member of the Committee had a different
    perspective at the outset of the process, but we unanimously
    identified many of the systemic problems that plague forensic
    science and we proposed 13 specific recommendations to address
    these problems.
        But at the core of all of these recommendations is our
    collective judgment that the forensic science community needs
    substantial systemic reforms in order to create a culture of
    science.
        As we formulated our recommendations, we became acutely
    aware that it would take substantial, tangible progress to
    create this culture. And therefore, we recommended that
    Congress create the Federal capacity to stimulate research, to
    set uniform standards, and to ensure that these rigorous
    standards would be enforced.
        In our collective judgment, there were serious systemic
    problems that required specific, systemic solutions. But
    although I'm hopeful that Congress will pass this legislation,
    I don't think that is sufficient in and of itself.
        In order for there to be significant progress, the law
    enforcement community must also embrace the recommendations in
    the NAS report. And there are many compelling reasons why law
    enforcement officers and prosecutors should do so, but there's
    one overarching reason.
        The central goal of all our recommendations is to enhance
    the accuracy and reliability of forensic science testing and
    testimony. No law enforcement officer and no prosecutor who is
    interested in truth and justice can object to recommendations
    that will advance that goal. Therefore, it is in the best
    interests of law enforcement to support systemic reforms.
        And let me just use one example and I'll talk about DNA to
    illustrate this point. And I think it's important to reflect
    upon the evolution and impact of DNA testing. As a result of
    DNA analysis and expert testimony being grounded in extensive
    scientific research, DNA testing routinely helps law
    enforcement to identify dangerous criminals.
        DNA expert testimony about the results of DNA testing also
    frequently persuades juries to return guilty verdicts. While
    DNA testing has also helped to exonerate people who were
    wrongfully convicted of crimes that they didn't commit, DNA
    testing has been an even more powerful weapon in successfully
    identifying and prosecuting violent criminals.
        I believe that some of the other forensic science
    disciplines that have not yet been scientifically validated may
    have the same potential to assist law enforcement in achieving
    its important mission, which is protecting the public.
        And if given an opportunity during the question period, I'd
    like to speak about the importance of having crime labs be
    independent of law enforcement in order to advance that goal.
        But in sum, I respectfully recommend that Congress enact
    the legislation that embodies all of our recommendations. Thank
    you for the opportunity to be with you this afternoon.
        [The prepared statement of Mr. Mearns follows:]

       Prepared Statement of Geoffrey S. Mearns, Provost and Senior Vice
    President for Academic Affairs, Cleveland State University and Member,
     Committee on Identifying the Needs of the Forensic Science Community,
               National Research Council, The National Academies
        Good afternoon Mr. Chairman, Ranking Member Hutchison, and members
    of the Committee. My name is Geoffrey Mearns. I am the Provost and
    Senior Vice President for Academic Affairs at Cleveland State
    University. I had the privilege of serving as a member of the Committee
    on Identifying the Needs of the Forensic Science Community at the
    National Research Council. The National Research Council is the
    operating arm of the National Academy of Sciences, the National Academy
    of Engineering, and the Institute of Medicine of the National
    Academies, chartered by Congress in 1863 to advise the government on
    matters of science and technology.
        In February 2009, after more than 2 years of work, our committee
    issued a report entitled, ``Strengthening Forensic Science in the
    United States: A Path Forward.'' As a former Federal prosecutor, I
    believe that it is imperative that the recommendations in the National
    Academy of Sciences report be implemented. Implementing our
    recommendations will advance the principal goal of the NAS Report: to
    assist law enforcement officials in identifying and convicting people
    who commit crimes.
        In order to understand fully why I believe Congress should pass
    legislation that embodies the recommendations in the NAS Report, it is
    important to understand how my personal views of forensic science
    evolved during the 2-year period in which I served on the NAS
    committee. I believe my own growth may help others to reconsider some
    of their pre-existing views about forensic science.
        Before becoming dean of the Cleveland-Marshall College of Law at
    Cleveland State University in July 2005, I practiced law and tried
    criminal cases for more than 15 years. My trial experience included 9
    years as a Federal prosecutor with the United States Department of
    Justice. While serving in the Justice Department, I had several
    positions. As an Assistant United States Attorney for the Eastern
    District of New York, I was Chief of the Organized Crime and
    Racketeering Section. I then became the First Assistant United States
    Attorney for the Eastern District of North Carolina. I completed my
    Justice Department career as Special Attorney to United States Attorney
    General Janet Reno. In that capacity, I assisted in the successful
    prosecution of Terry Nichols for his role in the Oklahoma City bombing.
        As a Federal prosecutor, I tried more than 20 criminal cases. As a
    result, I gained substantial experience preparing and examining expert
    witnesses from various forensic science disciplines. I questioned
    chemists who analyzed suspected narcotics, technicians who compared
    tool marks, fingerprint examiners, and handwriting experts. In the
    Nichols case, I presented expert testimony regarding the chemical
    composition of plastic fragments that were found in the rubble of the
    Murrah Federal Building in order to establish a link between that
    evidence and large plastic drums that were seized from Nichols.
        Based on that experience, I began my service on the NAS committee
    with two fundamental assumptions about forensic science. First, I
    assumed that the vast majority of forensic science disciplines were
    well-grounded in scientific research and scientific methodologies.
    Second, I assumed that forensic science analysts followed uniform
    processes and procedures to ensure the accuracy and reliability of
    their tests and their trial testimony. In short, I had faith in the
    scientific expertise of the practitioners, and I had faith in the
    scientific validity of the tests and methodologies they used.
        During the two-year period in which I served on the NAS committee,
    my views about forensic science generally and some of the specific
    disciplines changed significantly. I came to realize that there was not
    nearly enough genuine science to validate many forensic science
    disciplines. I also come to realize that these deficiencies were
    impeding law enforcement's efforts to identify and apprehend criminals.
    I became increasingly concerned that these deficiencies were adversely
    affecting the fairness of the criminal justice system and undermining
    the accuracy and reliability of verdicts in criminal cases.
        In the NAS Report, our committee identified many of the systemic
    problems that plague forensic science, and we proposed 13 specific
    recommendations to address these systemic problems. At the core of all
    of these recommendations is our collective judgment that the forensic
    science community needs substantial systemic reforms in order to create
    a ``culture of science.''
        As we formulated our recommendations, we became acutely aware that
    it would take substantial, tangible progress to create this culture.
    Therefore, we recommended that Congress create the Federal capacity to
    stimulate research, to set uniform standards, and to ensure that these
    rigorous standards would be enforced. In our collective judgment, there
    were serious systemic problems that require specific, systemic
    solutions. Although the solutions cannot be implemented easily or
    cheaply, I am hopeful that this ``culture of science'' can and will be
    developed. My optimism stems from three principal facts.
        First, I am optimistic because the Congressional mandate to conduct
    the NAS study was initiated by prominent members of the forensic
    community. These forensic scientists were concerned with the lack of a
    commitment to scientific protocols and procedures in some disciplines,
    and they were troubled by the fact that some practitioners did not
    appreciate the need for basic scientific research and rigorous,
    mandatory standards. So, even before the NAS committee process began,
    some members of the forensic science community recognized the need for
    systemic reform.
        Second, since the NAS Report was released, broad support has
    quickly developed for the specific recommendations we identified.
    Indeed, a great many forensic scientists recognize that the NAS Report
    can generate financial resources and other support that will elevate
    their profession. This response is very encouraging.
        Third, within a few months of the release of the NAS Report, the
    U.S. Supreme Court expressly relied upon the analysis contained in the
    NAS Report to support the Court's interpretation of the Confrontation
    Clause. See Melendez-Diaz v. Massachusetts, 129 S. C. 2527 (2009). In
    that case, a majority of the Court readily grasped one of the central
    themes of the NAS Report: there is a common misperception among
    lawyers, judges, and juries that the vast majority of forensic science
    disciplines are inherently trustworthy and intrinsically sound because
    they are well grounded in objective science. The fact is, however, as
    discussed in the NAS Report, many forensic science disciplines have not
    yet been scientifically validated. I believe that the Court's reliance
    on the NAS Report should inspire Congress to embrace our committee's
    call for systemic change.
        But Federal legislation would not, by itself, be sufficient. In
    order for there to be significant progress, the law enforcement
    community must also embrace the recommendations in the NAS Report.
    There are many compelling reasons why law enforcement officers and
    prosecutors should do so.
        But there is one overarching reason: the central goal of all our
    recommendations is to enhance the accuracy and reliability of forensic
    science testing and testimony. No law enforcement officer who is
    interested in truth and justice can object to recommendations that will
    achieve that goal. Therefore, it is in the best interests of law
    enforcement to support systemic reforms.
        To appreciate this basic point, it is important to reflect upon the
    evolution and impact of DNA testing. As a result of DNA analysis and
    expert testimony being grounded in extensive scientific research, DNA
    testing routinely helps law enforcement to identify dangerous
    criminals. DNA expert testimony about the results of DNA testing also
    frequently persuades juries to return guilty verdicts. While DNA
    testing has also helped to exonerate some people who were wrongfully
    convicted of crimes that they did not commit, DNA testing has been an
    even more powerful weapon in successfully identifying and prosecuting
    violent criminals. I believe that some other forensic science
    disciplines that have not yet been scientifically validated may have
    the same potential to assist law enforcement in achieving its important
    mission--protecting the public.
        In my judgment, the problems that currently plague the forensic
    science community have undermined this mission. If faulty forensic
    science produces inaccurate results during an investigation, then law
    enforcement agents have wasted time and money. If flawed forensic
    science results or expert testimony have led to an unfounded criminal
    charge or a wrongful conviction, then a person has been unjustly
    convicted--and the real perpetrator has remained free to hurt other
    innocent people.
        I understand that some law enforcement officials have opposed our
    committee's recommendation that Congress create a forensic science
    entity that is independent of the Department of Justice. I believe,
    however, that it is important that the future of forensic science be
    distanced from the law enforcement agencies that have traditionally
    controlled forensic science research and testing. I have not formed
    this conclusion because of a lack of faith in the integrity of forensic
    science practitioners who work in law enforcement laboratories, or
    because of a lack of faith in the competence of the administrators who
    supervise those practitioners. To the contrary, I continue to trust in
    the integrity and the motives of law enforcement, and I remain quite
    proud of my past service as a Federal prosecutor.
        But law enforcement officials and forensic scientists are human,
    and all of us have biases that affect our judgment. In order to ensure
    the public, including judges and juries, that those human biases do not
    undermine the accuracy and reliability of forensic science testing, we
    should insulate such testing from the potential, unintended influence
    of law enforcement agencies. Our goal should be to create a ``culture
    of science'' within the forensic science community. To create such a
    culture, we should remove forensic science research and testing from
    the law enforcement culture.
        In sum, I respectfully recommend that Congress enact legislation
    that embodies all of the important recommendations that are contained
    in the NAS Report. I do so because I believe that these recommendations
    will advance public safety and promote justice.
        Thank you for the opportunity to testify. I would be happy to
    answer any questions the Committee might have.

        The Chairman. Thank you very much. And now, Dr. Terry
    Fenger, who is Director of the Forensic Science Center at
    Marshall University.

             STATEMENT OF TERRY W. FENGER, Ph.D., DIRECTOR,

              MARSHALL UNIVERSITY FORENSIC SCIENCE CENTER

        Dr. Fenger. Chairman Senator Rockefeller, Ranking Member
    Boozman, Distinguished Senators, I'd like to address the status
    of forensic science at Marshall University, mainly as a unique
    model by which forensic science in academia can interact with
    crime laboratories.
        Marshall University Forensic Science Center (MUFSC) was
    established in 1994 and developed a master's degree program
    under the authority of the West Virginia Board of Governors for
    higher education.
        Since 1997, 223 students have graduated from the program
    with Master's degrees in forensic science. Graduates have been
    hired in Federal, state, local crime laboratories, as well as
    in the private sector. That same year, the West Virginia
    Legislature authorized Marshall University Forensic Science
    Center to perform DNA testing on the state's convicted
    offenders under the authority of the West Virginia State
    Police.
        As a result of this legislation, Marshall University
    Forensic Science Center was charged with performing DNA testing
    on convicted-offender samples, the results being uploaded into
    the West Virginia CODIS, or Combined DNA Index System database.
        Establishment of a CODIS laboratory at an academic
    institution is unique and points to the services that can be
    offered by a university to support the forensic science
    community and other members of the criminal justice system.
        As part of the establishment of the forensic science
    program in the early 1990s, the process required a close
    working relationship between Marshall University and the West
    Virginia State Police crime laboratory at several levels.
        The input of the crime laboratory practitioners helped
    guide the development of courses and course content at a time
    before there were accreditation bodies for academic forensic
    science programs, such as FEPAC, which I'll describe a little
    more in depth later.
        Conversely, Marshall University offered services in support
    of the West Virginia State Police. Over the years, five West
    Virginia State Police laboratory scientists have enrolled part
    time in the Marshall University program and graduated with
    Master's degrees.
        In addition, 12 graduates of the MUFSC program have been
    hired by the West Virginia State Police as civilian examiners.
    Marshall University has also served as a resource for
    continuing education for members of the West Virginia State
    Police laboratory. Seminars are transmitted via live, online
    communications to the laboratory, which minimizes the time and
    costs for continuing education of laboratory personnel.
        The infrastructure developed at MUFSC through both the
    accredited DNA laboratory and the academic program allows the
    Center to offer training to practitioners in the forensic
    science community, specifically DNA analysts.
        DNA analysts have been trained at MUFSC in various
    technologies, including advanced DNA technologies, parentage
    and relationship testing using DNA, male (Y chromosome) DNA
    testing, and the use of expert systems to analyze DNA results.
        Since 2005, over 1,500 forensic analysts, crime scene
    investigators, and sexual assault nurse examiners have traveled
    to MUFSC for training by our highly qualified training staff in
    our state-of-the-art training facilities.
        I'd like to present the rest of this material as part of
    written comments later, but I'd like to now switch my comments
    to recommendations.
        The Chairman. All of your statement, all of your
    statements, will be included in the record.
        Dr. Fenger. Thank you, Senator. Recommendation 10 in the
    National Academy of Science report on the status and needs of
    forensic science focused on strengthening undergraduate and
    graduate education offered through our colleges and
    universities.
        Marshall University Forensic Science Center has been
    accredited since 2005 by an organization called the Forensic
    Science Education Program Commission (FEPAC). Based on the
    experiences of our program and staff, I would like to offer our
    perspective about the path to strengthen forensic science
    academic programs.
        I would like also to detail some recommendations for moving
    forward with additional types of programs in academia.
        The field of forensic science encompasses diverse types of
    criminal cases and many types of case evidence. These types of
    evidence are best analyzed using the methods of chemistry,
    biology, physics, mathematics, and engineering.
        A college-level education is critical for the development
    of current and future forensic scientists in order to meet the
    needs of the criminal justice system. In conjunction with a
    strong curriculum in forensic science, it is imperative that
    students receive instruction in specific disciplines through
    extensive laboratory training, and classroom instruction.
        In an effort to better prepare forensic science students to
    meet the needs of the community, forensic science programs
    should be strongly encouraged to become accredited and maintain
    accreditation.
        Through the efforts of the American Academy of Forensic
    Science and specifically the Forensic Science Education
    Programs Accreditation Commission, FEPAC, academic programs
    that choose the accreditation path are being held to high
    standards that help assure quality graduates as a result of
    their academic experience.
        An accredited program provides yearly reports to FEPAC. And
    every 5 years, it undergoes a full accreditation audit.
        I further recommend the establishment of doctoral degrees
    specifically in forensic science. Many doctoral-level faculty
    members that provide instruction and conduct research in
    forensic science programs are educated in other scientific
    fields that fall outside of forensic science.
        Because of career changes, they move from those fields into
    forensic science. There is a paucity of doctoral degree-
    granting programs in forensic science that have a major
    laboratory-based research underpinning in the United States and
    universities should be encouraged to build upon the 15 FEPAC
    accredited master's degree programs to establish doctorate
    programs.
        Accredited forensic science programs require that, at
    minimum, 50 percent of the faculty have appropriate doctorate
    degrees in science, preferably in forensic science, which
    suggests that, as new forensic science programs develop and
    faculty retire from existing programs, there will be an even
    greater demand for doctoral-level faculty.
        I will summarize my comments mainly because of time in a
    few words, in the sense that I view that forensic science in
    academia is in need of significant development.
        I think there's a solid core, but this can be expanded upon
    and there are many ways of doing this, one of which is
    accreditation. The second one is developing doctoral degree
    programs in forensic science specifically, that will produce
    researchers that will be able to conduct the research that
    we're talking about here today.
        Thank you very much.
        [The prepared statement of Dr. Fenger follows:]

            Prepared Statement of Terry W. Fenger, Ph.D., Director,
                  Marshall University Forensic Science Center
        Chairman Senator Rockefeller, Ranking Member Senator Hutchison,
    Distinguished Senators

        Thank you for the opportunity to present views of the faculty
    members of the Marshall University Forensic Science Center relative to
    academic programs in higher education.
        Recommendation 10 in the National Academy of Sciences Report on the
    status and needs of forensic science focused on strengthening
    undergraduate and graduate education offered through our colleges and
    universities. Marshall University Forensic Science Program housed
    within the Forensic Science Center (MUFSC) has offered a two-year
    Master's degree in forensic science beginning in 1995 and achieved full
    accreditation of its program in 2005. Based on experiences of our
    program faculty and staff, I would like to offer our perspective about
    a path to strengthen forensic science academic programs. I will then
    review the role that MUFSC has played in supporting the criminal
    justice system through training, outreach and research activities.
        The field of forensic science encompasses examination of diverse
    types of case evidence from a wide variety of crime scenes.
    Technologies and methodologies that arise out of chemistry, biology,
    physics, mathematics and engineering are employed to seek the truth and
    to provide scientific results that will withstand the scrutiny of our
    courts. A college level education is critical for the development of
    current and future forensic scientists, in order to meet the needs of
    the criminal justice system. In conjunction with a strong core
    curriculum in forensic science, it is imperative that students receive
    instruction in specific disciplines through extensive laboratory
    training, classroom instruction and discussions. Crime laboratories
    that employ entry level forensic scientists seek college graduates
    having the education and necessary skill sets that will reduce
    additional post-graduation training provided by a crime laboratory. A
    theme that has been expressed repeatedly by crime laboratory directors
    and laboratory technical staff is that graduates of some forensic
    science programs are not fully trained in scientific technologies,
    court testimony and legal issues, report writing and in other areas and
    that some university programs need to better prepare students to enter
    the workforce. Training deficits may be more significant for new hires
    who graduate from science programs that lack a forensic science
    component. Training offered by crime laboratories that supplements the
    academic education of the new hire may redirect laboratory scientists
    from other duties, including testing crime scene evidence. Academic
    programs that award a Master's degree in forensic science have added
    responsibilities in educating the next generation of laboratory
    technical leaders. Laboratory accreditation standards of DNA
    laboratories require that the technical leader have a Master's degree.
    To best prepare future technical leaders for management and
    administrative responsibilities, Master's degree granting programs
    should include courses that feature instruction on laboratory, human
    resources and compliance management in their curriculum.
        In an effort to better prepare forensic science students to meet
    the needs of the community, forensic science programs should be
    encouraged to become accredited and maintain accreditation. Through the
    efforts of the American Academy of Forensic Sciences and the Forensic
    Science Education Programs Accreditation Commission (FEPAC), academic
    programs that choose the accreditation path are being held to high
    standards that help assure a quality education and signal crime
    laboratories that program graduates are well-educated in a core body of
    knowledge and laboratory technologies. An accredited program provides
    yearly reports to FEPAC and every five years it undergoes a full
    accreditation audit. Failure to consistently meet standards can result
    in the program receiving probationary status or revocation of
    accreditation. Hesitancy to seek accreditation by some college and
    university programs may be the costs. Initial costs for equipment and
    facilities and salary for faculty and staff can be daunting. In
    addition, over a five year period total costs to maintain accreditation
    may reach $8,000, which may be prohibitive for some programs. From the
    perspective of MUFSC faculty, the financial costs and time investments
    by the university are well worth it, because many of prospective
    forensic science students realize the importance of graduating from an
    accredited program. The full support of the University through adequate
    program funding is crucial to achieve full accreditation. All
    stakeholders, including academic program administrators,
    representatives from Federal granting agencies and advocates for
    forensic science must communicate with University administrations and
    make them aware of pressing issues and how universities can best serve
    the criminal justice system as well as their students.
        The establishment of doctorate programs in forensic science should
    be an area of primary importance for universities. Many doctoral level
    faculty members that provide instruction and conduct research in
    forensic science programs were educated in scientific fields outside of
    forensic science and have entered into forensic science as a result of
    a career change. There is a paucity of doctorate granting programs in
    forensic science that have a major laboratory-based research
    underpinning in the United States and universities should be encouraged
    to build upon the 16 existing accredited Master's degree programs in
    forensic science in order to establish new doctorate programs.
        Accredited forensic science programs require that at a minimum 50
    percent of their faculty have appropriate doctorate degrees in science,
    preferably in forensic science, which suggests that as new forensic
    science programs develop and faculty retire from existing programs,
    there will be even a greater demand for doctorate level faculty.
        As stated in the NAS report, certain disciplines in forensic
    science require basic research for the development of new technologies
    and methodologies. Members of crime laboratories are often inundated
    with casework and validation studies and laboratory personnel cannot be
    spared to perform basic science research studies. In scientific
    disciplines outside of forensic science, research projects are lead by
    doctorate level researchers within academe, Federal institutes and
    laboratories in the private sector, such as biotechnology companies. It
    is the opinion of MUFSC faculty that research-based programs in
    forensic science are needed to serve the forensic science community,
    working closely with Federal and state crime laboratories to identify
    problems and to prioritize and chart the direction of research
    projects.
        Certain forensic disciplines have been staffed by professionals who
    were trained under the mentor-apprentice system and who may not have
    advanced degrees. At the same time, forensic science programs often do
    not have qualified instructors to present formal classes and
    laboratories in some of the comparative sciences. Marshall University,
    for example, would like to develop an area of emphasis in firearms and
    toolmarks. Forensic experts in the field may lack the prerequisite
    Master's degree required to satisfy university requirements for full-
    time instructors or they may not be available as part-time instructors
    in a given geographic area. This impasse needs to be addressed to allow
    forensic science programs to hire instructors and researchers in the
    comparative sciences who my lack advanced degrees.
        Grant funding needs to be available to help develop forensic
    science programs at all levels. Funding would support the development
    of academic infrastructure, including hiring necessary numbers of
    faculty who have a demonstrated background in the forensic sciences,
    purchasing equipment and chemical reagents, upgrading laboratory
    facilities and classrooms all in order to provide the best education
    experience.
    Now turning to the Marshall University Forensic Science Center
        Marshall University Forensic Science Center was established in 1994
    and developed a Master's degree program in forensic science under the
    authority of the West Virginia Board of Trustees for Higher Education.
    Since spring of 1997, two-hundred and twenty three students have
    graduated from the program with Master's degrees. Graduates have been
    hired by federal, state and local crime laboratories, as well as
    laboratories in the private sector.
        That same year the West Virginia legislature authorized MUFSC to
    perform DNA testing for the State's convicted offenders, under the
    authority of the West Virginia State Police. As a result of this
    legislation MUFSC was charged with DNA testing convicted offender
    samples, the results being uploaded into the West Virginia's Combined
    DNA Index System (CODIS database). Establishment of a CODIS laboratory
    at an academic institution is unique and points to services that can be
    offered by a university to support the forensic science community and
    other members of the criminal justice system. In addition, the
    development of MU Forensic Science Program in the early 90s required a
    close working relationship between MUFSC and the West Virginia State
    Police laboratory at several levels. The input of crime laboratory
    practitioners helped guide the development of courses and course
    content at a time when program accreditation bodies (FEPAC) in forensic
    science did not exist. Conversely, the MU Forensic Science program has
    offered services and support to benefit of the WV State Police. Over
    the years, five WVSP laboratory scientists have enrolled part-time in
    the MU forensic science program and graduated with Master's degrees. In
    addition, 12 graduates from the MUFSC program have been hired by the
    WVSP crime laboratory as examiners. MUFSC has also served as a resource
    for continuing education for WVSP laboratory. Seminars are transmitted
    live via on-line communications to WVSP laboratory, which minimizes
    time spent and costs for continuing education for laboratory personnel.
        The presence of both the accredited DNA testing laboratories and
    the academic program at MUFSC allowed the Center to develop training
    that is offered to practicing DNA analysts in several sub-disciplines
    of DNA analysis, including advanced DNA technologies, parentage/
    relationship testing, male DNA testing and the use of expert systems to
    analyze DNA results. Since 2005 over 1500 forensic analysts have
    traveled to MUFSC for training by highly qualified DNA analysts in its
    state-of the art training laboratories. Crime scene investigators have
    also been trained at MUFSC through a collaborative effort between FBI
    trainers and MUFSC staff. Also since 2005, 380 sexual assault nurse
    examiners (SANE) have been trained at MUFSC to meet the 40-hour
    requirement mandate by their certification body. Training of local
    police officers in collection and transport of digital devices and
    basic analysis of cell phones is also part of our training agenda.
    Instruction in the investigation of computer and digital device crimes
    and e-discovery has been presented to circuit court judges and
    attorneys during the last two years.
        As stated previously, the focus of the MUFSC DNA testing
    laboratories has been and continues to be testing convicted offender
    samples in support of West Virginia CODIS. Over the last decade,
    however, the capabilities of the DNA laboratory have expanded to
    include testing evidence for criminal cases and for paternity/
    relationship testing as part of applied research projects. The MUFSC
    DNA laboratories are accredited for testing evidence samples from
    criminal cases and have participated in projects whereby case samples,
    submitted by law enforcement agencies, have been tested and project
    data analyzed. Projects included helping Los Angeles Sheriff's
    Department with DNA testing of samples from sexual assault kits, which
    helped reduce their backlog. A similar project is ongoing with the New
    Orleans Police Department. DNA testing of property crime evidence is
    also an ongoing project and involves testing case samples from three
    populations; a large demographic (Miami-Dade, Fl.), a medium size
    demographic (Charleston, S.C.) and a small city (Huntington, W.V.)
    Results from these projects are being analyzed and will be published.
        A second working laboratory, in the area of digital forensics
    investigations, is located at the MU Forensic Science Center. This
    laboratory developed around a Memorandum of Understanding between the
    West Virginia State Police and MU Forensic Science Center. A law
    enforcement expert in digital device investigations is stationed full
    time at the MUFSC facility and, in conjunction with MUFSC examiners, is
    responsible for analyzing case evidence. The academic program benefits
    from this arrangement because digital forensic professionals are
    available to mentor interns in digital forensic projects.
        Research laboratories, focusing on chemistry, DNA, digital devices/
    computers and microscopy are also part of the center's scope. Although
    only qualified analysts work with case evidence, students benefit from
    training offered by laboratory analysts and faculty researchers.
        Through the joint efforts of the examiners/trainers from the DNA
    testing laboratories and the faculty from the forensic science program
    at MUFSC, an internship program has been developed to assist crime
    laboratories in performing validations and conducting research
    projects. During the summer months between the first and second year of
    the two-year program, MU forensic science students are required to
    perform research-based internships either in crime laboratories or
    research laboratories. Beginning five years ago the Forensic Science
    Center at Marshall University initiated the Technical Assistance
    Program (TAP). The goal of TAP is to make internship research projects
    more rewarding and productive for both the hosting crime laboratory and
    the student intern and to assist crime laboratory in validation of
    equipment and methodologies The Technical Assistance Program was
    developed in response to comments voiced by crime laboratory personnel,
    who perceive a lack of preparation of some students, who enter
    internships without proper prerequisite training and skill sets. That
    responsibility for intern training then falls on members of the host
    laboratory and the time required to prepare the student to perform
    worthwhile work is a burden on the laboratory. The TAP shifts the
    burden away from the host laboratory to the academic program.
    Approximately 8 months prior to the beginning of the internship, first-
    year students state their desire to participate in the TAP program.
    MUFSC maintains a list of laboratories that are willing to host a TAP
    student and each student is paired with host laboratories. The project
    for the next summer is identified early in the process and over the
    next 6-7 months the student is provided with intense laboratory and
    classroom instruction in preparation for the internship research
    project. When the student begins the summer internship he/she is fully
    prepared and little is required from laboratory staff. From the
    perspective of MUFSC faculty, this model can be expanded and has the
    potential to provide assistance to forensic laboratories nationwide.
    Recently, MUFSC has been approached about expanding the TAP programs to
    other forensic disciplines outside of DNA into areas including forensic
    chemistry and digital device forensics. Grant funding to provide summer
    stipends for TAP interns could help promote the further development of
    Technical Assistance Programs at MUFSC as well as initiate similar
    programs at other universities.
        In sum, it is recommended that undergraduate and graduate program
    in forensic science should aspire to FEPAC accreditation. The programs
    need to be positioned to adjust their curricula if certification of
    laboratory personnel becomes a reality. It is further recommended that
    doctoral level programs in forensic science are needed to promote both
    research and to educate the next generation of forensic scientists.
    Funding mechanisms to strengthen existing forensic science programs and
    develop new ones should be developed through the state and Federal
    grant funding agencies. A strong partnership between academic
    institutions and crime laboratories is essential to promote the
    development of college and university program to best support the
    criminal justice system.

        The Chairman. Thank you very much. Let's start right out.
    Several questions occur to me and I'll ask a couple at once.
        Funding--NSF and NIH are research agencies. They do
    research grants. The Department of Justice also does research
    grants. They did a total of 53 last year, adding up to $16.8
    million, not hefty.
        To contrast, NIH did 35,000, $16 billion, NSF 13,000, $5.5
    billion. In other words, there is a large difference between
    the availability of funding from the Federal level, and what's
    going to be enough to get us going, so that's problem number
    one.
        Problem number two, Mr. Grisham and others, what do we do
    in the meantime until we have accredited forensic specialists
    who can give testimony which is absolutely unassailable, like
    nuclear DNA?
        I don't know how many years you're talking, but I'd guess
    8, 10, 12, 13, 15. And just the fact of the commission, the
    report, the fact--one of the reasons I wanted to have this
    hearing today, because it's a subject which profoundly
    interests, I think, a lot of us.
        But in essence, it almost gives a sleepy judge or somebody
    else a chance to say, ``Well, this isn't relevant,'' you know.
    We--you--it--how do I know that's true?
        In other words, it complicates whatever the--however
    inadequate the prosecution process might be at this time or the
    defense of the prosecution may be at this time, it is what it
    is and it has the forensic knowledge that it has. And it
    doesn't have what it doesn't have.
        And that's a great deal, so that the funding question is
    less important to me than, actually, what happens in the
    meantime? How do we do this? How do cases get prosecuted when
    they have been, in essence, undermined by a very excellent
    commission study?
        Mr. Grisham. Until you clean up the forensics with
    research, and testing, and standards, and validation, these
    methods are being used every day. This testimony is being used
    every day in trials all over this country.
        Bite-mark analysis? Some hair analysis, although that's
    pretty much been set aside because of DNA. Most of the time,
    the DNA--you can test hair with DNA.
        But there is still a lot of these shaky forensics. Until--
    until the problem is solved, the problem's not going to go
    away. And DNA is used in less than 10 percent of all murders.
        So as great as it is, in 90 percent of all murders, you
    don't have, you know, the clear biological evidence.
        The Chairman. But that's my point. We don't have it. It's
    going to take time to get it. It's not been well funded. We're
    not at our most prosperous point in the last 50 years.
        And science's STEM is on the rise enormously, forensics
    greatly with enormous pull in the job market, but still a long
    period of time. And I just worry or wonder about whether
    somebody who has a compelling, you know--clearly associated
    with, clearly appears to be all the language which is used in
    court, that it's undermined already. It's stipulatedly
    undermined by the fact of what this commission has said.
        And therefore, it may not have standing in court, or people
    can attack its standing in court, the evidence. Am I over-
    worrying? Can we have a fair justice system while we're waiting
    for forensics to catch up?
        Mr. Grisham. These are--the problems are not going to go
    away until they're fixed.
        The Chairman. Yes.
        Dr. Gatsonis. Senator, I will take up the funding question
    first and then go to your next question.
        The Chairman. OK.
        Dr. Gatsonis. Funding obviously needs to be multiplied by
    10 times over the figures you mentioned, or even more, to get
    anywhere in terms of addressing real research. There's no
    question about it.
        But it's a lot more important how we actually direct this
    funding. We need to identify who knows how to organize and
    direct the funding. In other words, who knows how to organize
    the scientific agenda that has to be addressed?
        This was a key issue behind the recommendation to create an
    institute. This entity would have the scientific know-how and
    also the know-how from the actual forensic world. Those
    directing the funding need to have both types of know-how and
    only then they could determine, for example, whether we need a
    grant program in this, we need a grant program in that area.
        When NIH develops a particular grant program, there's a
    whole rationale, scientific rationale behind it. And it can
    take years to develop this rationale. The same kind of thinking
    we will have to do in forensics.
        So we'll need an entity that actually organizes and directs
    this kind of funding. Just throwing $300 million at the problem
    will get you nowhere, nowhere, unless there is direction, and
    prioritization of the questions, and long-term planning as to
    where we are going, and so on.
        This is how the research can be done. When it comes to what
    do we do in the meantime, I'll give you two responses. From the
    Committee's perspective, this question was outside its charge.
        The Committee was there to look at the current state of the
    forensic sciences and identifies its strengths and problems. We
    were very careful in drafting the report so that it doesn't,
    for instance, reflect specific judgments on past cases. Surely,
    we knew that the report would have implications. So that's from
    the Committee's perspective. From the citizen's and the
    scientist's perspective, I'll offer the following response.
        We use diagnostics in medicine all the time. And we make
    life and death decisions on the basis of them. Are these
    diagnostics accurate? No. Are they being developed further as
    we speak? Yes, they are. Are all of them as good as they should
    be? No. But life goes on. OK?
        I would take a similar approach to forensics. If the
    country can focus on actually developing the research
    enterprise, actually getting going on this, putting in place
    the systems that are in place, a lot of things there can be
    done quickly.
        From there on, the judicial process will run its course and
    all the developments in the forensic disciplines will have
    their repercussions in the courts.
        But life goes on.
        The Chairman. I thank you and I call on Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman, and
    thank you for the excellent testimony today. I just have a more
    general question of all of you.
        And we've been talking about the CSI phenomenon. And I
    actually watched Hawaii 5-O last night, when I couldn't get to
    sleep. OK. That is a sad admission.
        But they have, like, super cool stuff with, like, things
    and TV. I just wondered if your opinion of the advancement of
    science that we've seen, scientific developments that have
    taken place outside of the forensic community--do you think
    that that's being taken advantage of by our crime labs?
        And are they--have they sufficiently tapped into the latest
    developments of the scientific community that could help not
    just prosecute people, but also exonerate them? Anyone can
    answer.
        Mr. Mearns. Well, I guess I think the answer is very mixed.
    I think, in some disciplines and in some agencies, the answer
    is yes. But our concern on the Committee was that not--that not
    all of them and certainly not enough of them have embraced the
    core value of research.
        And if I can give you just one example that occurred during
    the course of our committee process, there was an individual
    who came to make a presentation, essentially to testify before
    the hearing, who is the head of an international association
    about tool marks.
        And he made a presentation. And at the end of the
    presentation, there was a standard question that was either
    asked by Dr. Gatsonis or Judge Edwards, which was, you know, if
    there were--if Congress were to appropriate additional
    resources for research, what would be on your research agenda?
    What are the issues that you think need to be explored?
        And this individual said, ``Nothing.'' And Judge Edwards, I
    think it was, assumed that perhaps this person didn't
    understand the question, right? This is a softball. If you want
    more resources, just, you know, this is why we're here.
        And so he asked the question again. And the person still
    said, ``Nothing.'' Well, I mean, that--you know, I made a
    presentation a year ago to the NAS about this and this was a
    room filled with real scientists.
        And I asked them, you know, raise your hand if any of you
    think, in your discipline, you know enough, that you know there
    are no additional research issues that need to be researched.
        Well, as you can imagine, none of them raised their hand.
    Right? And that's because no one who--really understands the
    culture of science, the values that are inherent in science,
    would say that the research has been concluded.
        So it's very mixed. It's--and I think that is--the concern
    that we had on the Committee was that there wasn't this culture
    of science, the recognition that we need to continue to
    explore.
        Senator Klobuchar. Exactly. One of the findings of the
    National Academies of Sciences' report is that there's
    insufficient amount of peer-reviewed, published studies
    establishing the scientific basis and reliability of forensic
    methods.
        How do we address this? How can we marshal resources to
    better support forensic science? And then I guess, secondly,
    what about medical schools, law schools? What role could they
    play here if we wanted to set some higher standards?
        Dr. Gatsonis. Well, part of it has to do with the funding
    and with the direction of the funding. So we need to establish
    a mechanism that has resources and actually knows how to--to
    direct them.
        Another part is, obviously, linking this enterprise with
    universities. There are very few universities in the country
    right now that even offer programs in forensic science. The
    program described by one of my co-presenters here is a rarity.
        Most universities are far away from this. The research
    agenda of forensics is really not part of the research agenda
    in academia, broadly speaking. We have to bring it into the
    mainstream of academia.
        How do you bring it in? Well, you bring it in by, A,
    linking it with other disciplines. For instance, computer
    scientists and imaging experts could be very interested in
    pattern recognition and could be interested in the analysis of
    fingerprints, handwriting, et cetera, et cetera.
        Statisticians are interested in all aspects of the forensic
    disciplines. Engineers of various kinds, such as those who
    study fluid dynamics, would be interested in how splatter
    happens and how to model it. A lot of necessary expertise may
    be there already.
        But for all of this has to happen, we need direction and
    funding.
        Senator Klobuchar. Yes. I'm remembering now, some of our
    crime labs. It's--was so hard to get the DNA experts. They
    were, like, hiring them away from each other, and just some of
    the issues with having enough scientists.
        My last question would just be along those lines, about
    delay. What do you see as the magnitude of delay in our problem
    in analyzing data? And how do we reduce delays? I know you're
    going to say funding, but I thought I'd ask the question. You
    want to--delays, Dr. Fenger? Do you want to?
        Dr. Fenger. Well, I have a slightly different viewpoint, in
    response to your other questions as well as this question.
    There's a wealth of information and expertise embodied in
    individuals who have been trained by the mentor-apprenticeship
    approach.
        Some practitioners work outside academia, but at the same
    time, they devote their professional careers to developing best
    practices and conducting research in their respective fields.
    What I would like to see is the recruitment of these highly-
    skilled individuals with their vast experiences and wealth of
    information into academic environments either as faculty or
    consultants.
        For example, we are interested at MUFSC in starting a
    firearms and tool mark offering in our curriculum. Where do we
    find the expertise to initiate this type of offering?
        There, is no university that I know, that offers majors
    covering tool marks and firearms. We cannot recruit expertise
    out of another university to build our own tool mark and
    firearms courses.
        There are many highly-qualified practitioners that
    sometimes are labeled as not having a solid scientific
    background behind their career.
        At the same time, these professionals can serve as valuable
    resources for academics. They can convey to academic
    researchers what problems need to be addressed within research
    laboratories.
        There is immeasurable expertise that these individuals have
    acquired during their careers from mentor-apprentice training.
        Senator Klobuchar. OK. Very good. Mr. Grisham, have you
    seen any ideas for books in this discussion here? Maybe you
    could do a thriller on the very slow process to get things
    done.
        Mr. Grisham. Yes. Well, everything's fair game for a book
    and not--I don't want you all to beat up these TV shows too bad
    because I got a couple of TV programs in the works myself.
        So I don't want--I don't--you know, I see the Cold Case,
    and crimes, you know. Those shows have all become popular since
    I left the courtroom, so I haven't had to deal with that part
    of popular culture in the real life and picking a jury.
        I do think, though, that I've seen cases where there was a
    tremendous amount of pre-trial publicity. And I think it's
    possible in the jury selection process, inside the courtroom,
    for the judge to deal with these elements of popular culture
    that are always kind of seeping into our knowledge and what we
    believe.
        I don't--I don't think it's that big of a problem. I know
    you have to deal with it. I've talked to lawyers who deal with
    it. They see it all the time in jury selection, but if you're
    careful enough, you can get away from that and get back to, you
    know, the issues that are in front of the jury.
        Senator Klobuchar. Thank you very much. I really appreciate
    you being here today.
        The Chairman. Thank you, Senator Klobuchar. I, among my
    many, many sins, I failed to call upon the Ranking Member. Mr.
    Boozman, too, I profoundly apologize.
        Senator Boozman. As I said, if that's the worst mistake
    that you make today, then you're in good shape. We do
    appreciate you all being here. The testimony has been very,
    very good. And I think you've all done a really good job of
    making the case, that we have a significant problem that we
    have to deal with.
        The science--Mr. Grisham has written very eloquently about
    the human cost, of people being falsely incarcerated. And we
    probably don't talk enough about them.
        My problem, as we deal with this, is what is the role of
    government? Certainly, I think it has a role. And the question
    is how do we go about finding how much?
        Dr. Gatsonis, you mentioned about studies and efficacy.
        As an internist, you see patients that are being treated
    for cancer with chemotherapies that the science has said it
    isn't going to do much.
        But I don't want to federalize your program. I don't think
    that would be a benefit. And I don't think it would make it
    more advantageous to do that or make it more efficient.
        So that's really the struggle. And again, your testimony is
    really good. Let me ask a couple things real quick. Mr. Mearns,
    in your testimony, you discussed the evolution of DNA analysis
    and how it has become a reliable forensic method.
        Based on your work in the area, could you talk about the
    DNA advisory board at the Department of Justice and its role in
    successfully creating a national gold standard for the--for the
    DNA analysis?
        Mr. Mearns. I'll speak briefly. I'll--excuse me. Senator, I
    will answer relatively briefly because I don't have a great
    deal of familiarity with that particular organization.
        But it does, as your question suggests, give us a framework
    for how these other disciplines can validate or not the
    techniques that they've--that they've used.
        My concern with, you know--again, I think the DNA----the
    approach to DNA has been an effective one. My concern, though,
    as we go through some of the other forensic disciplines,
    because that advisory board and the approach to DNA emerged, I
    think, as Dr. Gatsonis said, from the grassroots up.
        And it was the research community that brought it to the
    law enforcement community. Too many of these other forensic
    science disciplines had their origin in the law enforcement
    community.
        So to replicate that model the same way and to keep them in
    the law enforcement community will be hard to create the new
    culture that's necessary.
        So I think, again, the--the scientific approach is
    important, but I think we do need to think about removing them
    from the law enforcement culture because, in my judgment,
    that's necessary for progress.
        Senator Boozman. And Dr. Gatsonis, could you comment about
    the rule of the government?
        Dr. Gatsonis. Yes. My remarks were about the science of it.
    When we practice diagnostics in the hospital, we do not do so
    in a ``federalized'' program. However, there are strict and
    widely used standards, professional standards, and
    accreditation processes in place.
        So it is not run by the government, but the professional
    societies and hospitals have enough oversight. And that
    oversight has teeth.
        In the forensic world there is no teeth in much of the
    oversight. In many jurisdictions and disciplines with a couple
    of years of apprenticeship, you could hang your shingle and
    declare, ``I am an expert.''
        That's a different story. That's not how science training
    is done, as you know. I take your point that the diagnostics in
    medicine are not 100 percent accurate and I don't expect that
    many of the forensics necessarily would be 100 percent
    accurate.
        But we have to study them. We don't know how accurate they
    can be. That's my point.
        Senator Boozman. No, and I agree. I guess what I was saying
    was that your discipline does a tremendous job. It wouldn't be
    advantageous to federalize it. OK?
        These disciplines have to have something that has some
    teeth in them to have a very advisory capacity at the least.
        I'm out of time, so I yield back.
        Senator Klobuchar [presiding]. OK. Senator Udall?
        Senator Udall. Thank you. Mr. Grisham, you are coming from
    a little bit different direction, I think, than the other three
    panelists.
        And I was wondering, from listening today to their
    testimony, I don't know how much of the 2009 report you've
    reviewed and their recommendations. That central recommendation
    is to have a completely independent Federal agency, I believe,
    that would do a lot of this work outside of the Justice
    Department. I think the term that was used, national
    institution of forensic science or something along that line.
    What are--what are your thoughts on what you've heard today?
    And how do we get to the solution?
        You have brilliantly described the problem, I think, when--
    in both your work and in your writing, but I'm wondering what
    your thoughts are on that.
        Mr. Grisham. Well, again, I'm not a researcher, or a
    scientist, and I'm not really--I'm not really fluent in the
    language of Congress, and Washington, and agencies, and how
    things work. And I wouldn't dare suggest in this current fiscal
    climate that we create a new Federal agency.
        We have a lot of Federal agencies already. We have a lot of
    Federal agencies that do great scientific work. And again, I
    don't--I don't think it would take a whole lot of work to
    validate or invalidate some of these forensic practices,
    whether it's bite-mark analysis, or you know, all the ones I
    mentioned, the ones that are still being used, the ones that
    are creating bad verdicts.
        It's--again, I can't tell you how to do it, but I don't
    think it would be that complicated. I do believe strongly that
    you've got to leave the science in the hands of the scientists,
    not the lawyers, not law enforcement.
        You've got to have the Federal--you've got to have Federal
    action because science cannot vary from state to state. It's
    got to be the same everywhere. And you've got to have the
    Federal Government to coordinate the research, to whatever
    agency, whatever scheme works best, and I can't tell you what
    that is.
        But to--to drive the research and then set the standards
    once the research is--once a method is validated or
    invalidated, it's invalidated, it's gone, hopefully nationwide.
        If it is validated, then what are the standards, the
    terminology, whatever? I mean, we have agencies that do that.
        And then maybe, at that point, you work with DOJ, and law
    enforcement, and the people who have direct contact with the
    355 crime labs there are in this country. You know, maybe
    that's the way it works. I don't know. But that's the best I
    can do.
        These methods, as Mr. Mearns has said, these methods that
    we are so critical of now, are so afraid of now, and have
    produced so many bad verdicts now, were created by law
    enforcement. They weren't science driven.
        And that's not a criticism of law enforcement. They're
    trying to solve crimes. They're using hair analysis and bite-
    mark analysis, trying to solve a crime, but these practices
    have not gone through the scientific rigor that is necessary to
    validate them, to make us believe them.
        Senator Udall. Now, you--I think you made this statement in
    your testimony with regard to the scientific issues in the
    courtroom. And that wasn't the place to resolve them.
        As all of us are familiar and you obviously are, when you
    try a case, there's a whole preliminary approach before you put
    the evidence in, where the judge looks at the science and does
    all of that.
        But you're basically saying, you don't--you don't think
    that's the place to do it.
        Mr. Grisham. Well, that doesn't always happen.
        Senator Udall. Yes. At first, it doesn't happen, but I----
        Mr. Grisham. Right.
        Senator Udall. But my guess is, even in some of the cases
    you're talking about, it happens, but they don't come to the
    right conclusion.
        Mr. Grisham. Well, yes, and what's terrifying is to see
    some of these cases where witnesses who had no real
    qualifications were allowed to testify and give opinions that
    were outrageous. In Mississippi, for years, we had a
    pathologist on the loose. We didn't have a State medical
    examiner. We had a pathologist who was not board-certified, who
    was the favorite of all of our prosecutors to come in and do
    the autopsy.
        He was doing 1,000 autopsies a year, by his own admission.
    And he was involved in every murder case. And the prosecutors
    loved him because he would pretty much say whatever they wanted
    to hear, to fit their notion of whatever the case was.
        And we can't even begin to speculate the damage he's done.
    There's--there are horror stories. That's a rare example, you
    know. That's a rare example, but it still happens.
        Senator Udall. Yes. Thank you. I'm out of time. I wish I
    could question you all a little bit more, but I yield back.
        Senator Klobuchar. Senator Lautenberg?
        Senator Lautenberg. Thank you, Madame Chairman. The --I'm
    here in this almost land of mystery for me because I'm not a,
    as I said earlier, a lawyer or a student of--I believe in
    equity and balance. That's what I like to see.
        And when I understand, Mr. Grisham, you said establish the
    factual innocence in DNA testing of 280 Americans, 17 of whom
    were sentenced to death, ready to be executed.
        How do we induce that kind of diligence, that kind of
    effort? And how about the public defender group? Does a person
    charged have a good chance to make that kind of a challenge?
        It doesn't seem that way, with the kind of ordeal that it
    takes to find out whether the science backs the conclusions
    that are made.
        Why is it that it takes an Innocence Project, which is
    fairly limited in terms of the places it can go, have to have
    the superstars supporting that in order to save these people
    from prison terms, save their lives, et cetera?
        Should we hear calls from one side of the Senate or the
    Congress that calls for a less active government, smaller
    government, and so forth? You've called for Federal standards
    and resources for developing and validating the sound forensic
    science.
        How do these two philosophies or policies merge in order to
    get the kind of outstanding or critical support that these
    people need to save, to be treated fairly in our society?
        Mr. Grisham. Well, your first point was about the defense
    lawyering. And there are many, many wonderful public defender
    groups in this country. The best is here in this city. There
    are a lot of wonderful public defenders who are committed to
    defending their clients.
        There's some superb capital defense lawyers who do nothing
    but that. And it's very, very tough work. However, in a lot of
    cases, the public defender's offices are overworked,
    understaffed, and it's not unusual to get a lawyer in a capital
    murder case who shouldn't be there. He's not experienced.
        That happens in big cities and a lot of rural areas. Where
    I practiced, we didn't have--we didn't have a public defender
    system, you know. It was kind of court-appointed.
        Ron Williamson, the guy I wrote about, the guy I
    mentioned--his lawyer was just a local lawyer who was court-
    appointed. Ron wanted to hire an expert to balance the expert
    called in by the prosecutor.
        And that's typically what you want to do, but if you're
    indigent, most judges won't let you have your own expert. So
    you've got an expert called in by the State and you're the
    defense. You can't afford one.
        You don't get an expert. So it's--it's not a level playing
    field. And you know, you're going against the State with--with
    basically unlimited resources if they want to spend the money
    in--in a capital murder case, if it's a big case, and you're
    the--you're the defendant with a public defender and with no
    expert.
        And you know, it's not a fair fight. It's not a fair trial.
    That's what happens in so many of these cases. And frankly,
    when you--when you study these cases, the level of defense
    lawyer at times is really, really disheartening and bad.
        That's just, you know--and that's what happens in these
    cases. The guy--the defense lawyers are not experienced. I
    think Mr. Mearns can probably add to that.
        Senator Lautenberg. So poverty has penalties in ways,
    obviously, recognized, and in my view, this is one of them. And
    how do you--when you're training students, how do you train
    them to make sure that all of the evidence is turned over?
        Because I think it's--it gets to be such an ordeal to do
    the kind of search that we have. You know, I'm prefacing a
    question very frankly here.
        And that is, do--in order to provide the fairness and
    balance in our society that we need, do we have to invest
    government money and government ability in order to clear this
    situation once and for all and establish the fact that just
    because it's evidence, it isn't scientific or accurate?
        What do we do in these situations, gentlemen? I ask any one
    of you.
        Dr. Fenger. I'll address the student aspect of it. The
    training of students is critical, as far as I'm concerned,
    because they represent the next generation of forensic
    scientists. A quality forensic science education may not help
    tomorrow or next year, but it will address needs of the
    forensic community in the future by having well-trained and
    well-educated groups of forensic scientists graduating from
    academic programs.
        What will really facilitate our ability to train forensic
    science students is feedback and guidance received through the
    accreditation process, because it lays out what needs to be
    addressed by forensic science programs, such as legal issues,
    report writing, quality assurance, in addition to technology
    itself.
        I think that educating the next generation of forensic
    scientists is critical to our discussion because these
    individuals, after 2 years in our master's degree program, will
    possibly be conducting DNA testing or other types of analysis
    as well as testifying in court.
        Now, that's not a long time frame.
        So that is my perspective having been in higher education
    for over 30 years.
        Senator Lautenberg. It looks, Mr. Chairman, like you
    can't--you can't do something like that, which is requested
    here, in the remarks of our expert witnesses. You can't do it
    on the cheap.
        And what we have to do is make the investments early in
    order to provide the kind of security and balance that we owe
    citizens of the United States. Thank you very much.
        The Chairman [presiding]. Thank you, Senator Lautenberg.
    Senator Nelson, who comes from--I forget what the state is. I
    think it's called Florida.

                    STATEMENT OF HON. BILL NELSON,
                       U.S. SENATOR FROM FLORIDA

        Senator Nelson. It's called Sunshine. Mr. Grisham, I
    enjoyed our visit earlier and thank you for that information. I
    ask any one of you which research opportunities show the most
    promise to not only help us in the criminal justice system, but
    also with our national security threats.
        Mr. Grisham. I'm going to let a researcher answer that.
        Mr. Mearns. I think--let me, if I may, separate the--the
    responses into two categories. First, I think we should focus
    our research efforts on some of the pattern disciplines that
    are used quite frequently, certainly things like fingerprint
    analysis, tool mark analysis, tire tracks, those kind of
    pattern analysis, which have shown reasonable reliability, but
    in my judgment, have not yet been appropriately and thoroughly
    scientifically validated.
        There has been a lot of research that has already been
    conducted. So with additional research and an additional
    comprehensive analysis of existing research, I think we can
    make the kind of determination that Mr. Grisham was talking
    about earlier, of whether they're valid or not, relatively
    inexpensively.
        In terms of the national security impact, issue, I don't
    think--well, again, I think there's kind of--two parts to that
    is, from a detection of international terrorism, my sense--and
    this is now my view, to--so I make clear, this isn't the view
    of the Committee or the NAS report. I believe there is a
    reasonable amount of science in the national security agencies
    that are helping us to detect threats of international
    terrorism.
        I was personally impressed with the quality of the
    presentation, the quality of the education, the quality of the
    training of those officials.
        Our weakness is on the domestic side because all of the
    issues that we've been talking about, all of the kinds of
    forensic science disciplines that we've been talking about, are
    the ones that are used domestically that could help us detect
    and prevent a domestic terrorist attack.
        And more importantly, irrespective of whether it's an
    international attack or a domestic attack, if it occurs in the
    homeland, the first responders are going to be primarily state
    and local law enforcement officials.
        So if we don't solve this problem comprehensively, the
    weaknesses that continue to permeate the state and local
    agencies are going to impede those investigations because those
    are going to be the first individuals on the scene.
        Senator Nelson. Give us some examples of some of the
    forensic science that would help us.
        Mr. Mearns. Well, again, I would--again, I would confirm
    that the--the tool mark analysis, the fingerprint analysis, and
    the other, and tire marks, and things like that. There's some
    other, blood spatter. I would--based upon what I've seen, is--I
    would--this is, again, my personal view. Doesn't seem to be a
    good investment to examine forensic odontology, you know, bite
    marks.
        That, just from the evidence I've seen, just appears to be
    very far away, away from being scientifically valid, and only
    would affect a relatively small number of cases.
        Dr. Gatsonis. If I may add to that, medical examiners have
    a big role to play in terms of domestic terrorism. For example,
    they would be the ones up front there detecting new cases, say,
    of epidemics or whatever bad biologics are disseminated.
        One of our recommendations was exactly to replace the
    system of coroners with medical examiners. And I don't know if
    you saw that part of the report, but this is something on which
    the country has been making progress for 100 years.
        The Academy had a committee recommending this reform in
    1928. So we are just about 80, 90 years behind that
    recommendation.
        Certainly, though, in modern type of terrorism and chemical
    warfare or whatever it is, you need the medical examiners to be
    medical examiners.
        Senator Nelson. Did you, Dr. Fenger, want to comment?
        Dr. Fenger. Yes. Just a few comments. There are new areas
    of forensic science that I think have a major role to play in
    anti-terrorism--detecting potential terrorist threats.
        One is digital forensics. There's so much information sent
    over the wire, or wirelessly, that can be mined to extract
    information about possible terrorist activities or solving
    crimes.
        This, to me, is the next DNA, and where resources need to
    be directed. It's an area that, in our program at MUFSC is
    undergoing rapid development.
        Another area that I think needs to be developed is
    microbial forensics. Bioterrorism agents such as anthrax and
    smallpox virus can be identified using DNA analysis and other
    methods.
        Not all anthrax strains are the same, and they may differ
    in their DNA sequence. By using those differences, we can
    pinpoint a source.
        So there are other scientific disciplines outside the areas
    that we've been talking about that deserve attention.
        Senator Nelson. We saw a good case of that, unfortunately,
    for a person who initially was accused, who apparently was not
    the right one. And he suffered through a lot, but we learned a
    lot from that case on the anthrax attack here.
        I made the mistake of taking a shortcut one day to get to
    the office, by going in the freight elevator. And then I
    learned, anybody that went in the freight elevator--some of the
    mail had been in there.
        And so I had to go on the 60 days of antibiotics, just as a
    precaution.
        I'd like to ask one more question, Mr. Chairman. May I?
        The Chairman. You're going to do it, no matter what I say.
        [Laughter.]
        Senator Nelson. No. Not if you say no, Mr. Chairman.
        [Laughter.]
        Senator Nelson. I'm curious about the jobs and the economic
    activity that could come out of the investments in forensic
    science research. And talk to us about that.
        Dr. Fenger. We had a homeland security conference at
    Marshall University not too long ago that Senator Rockefeller
    hosted. Secretary Napolitano was there as the keynote speaker.
    Speaking specifically of digital forensics, she indicated that
    the Federal Government could hire every graduate that we
    produced in the area of digital forensics. There's a great need
    for these individuals.
        It's not just digital forensics that needs highly trained
    career professionals. We have individuals who are retiring from
    forensic science who need to be replaced by a new generation of
    young people, that are trained to meet the highest standards.
        So I think there are a lot of career opportunities in
    forensic science.
        Senator Nelson. And one of the reasons she can't get them
    is that the NSA gets them before she does, but it's
    illustrative, NSA, Homeland Security, FBI. They all need these
    experts on identification, on these new kinds of tools that bad
    guys can use. Thank you, Mr. Chairman.
        The Chairman. You're very welcome, Senator Nelson. I'm just
    going to ask one final question.
        Senator Boozman. Then I get to ask one.
        The Chairman. Of course, you can. I wouldn't be bad to you
    twice in one meeting. In a way, there's so much substance in
    all of this, that it's almost impossible to do much in a
    hearing.
        I wanted--I have not read that report. I want to get that
    report and read it through. I fear to imagine how much of it I
    won't understand, but I'm going to do it nevertheless.
        It's so critical, the whole concept, John Grisham, of
    somebody being innocent, and after 12 years or close to death
    row, whatever, whatever it is they go through. I mean, that's
    PTSD. It has to be, of some form, or a bitterness of society
    that would last forever, sometimes gratitude, I guess, but
    probably not very often.
        And then--and then you see, on some of these things, like
    the CSIs and the NCISs, the rapidity with which everything is
    done. And actually, I've seen some of the scripts and they're
    all very short lines. They talk quick. They go around.
        None of them are scientists. Well, one of them is on one
    program. But they're FBI and they're--they know their stuff and
    they are professionals. And their marriages break up. They
    don't get any sleep. And they're doing their absolute very best
    on this.
        So now comes the question which Senator Nelson just asked,
    about the Feds looking at this. I mean, the American Bar
    Association, the forensics people, have all said you've got to
    have--you've got to have a certification for forensics before
    they can testify in court.
        Nurses have it. Lawyers have it. Doctors have it. Anybody
    else has it. If they're going to testify in court, they've got
    to be up to speed.
        I go back to my first question, how long is that going to
    take, my second question, which was, what do we do in the
    meantime? And sort of the general answer is, we go along as we
    have, as we are, to the best extent that we can.
        And that makes sense to me. What doesn't make immediate
    sense to me--and then set me straight if I'm wrong--is that
    when you say that the law enforcement community has sort of
    risen most of these non-science-based, non-DNA matters, to a
    forensic level which passes court test, influences juries, and
    influences judges, and whatever, and then you get up to
    something called the Department of Justice--and you know, the
    Department of Justice is a pretty formidable, smart outfit.
        I do not know how many forensic scientists they have. But
    if you say that the Department of Justice, being an extension
    of law enforcement, the ultimate extension of law enforcement,
    cannot pass, as is said in this certification process, that
    they can't do it because they're part of law enforcement, then
    you have to create a new Federal agency, which is--I would
    happily do, but which most folks around here don't want to do.
        This is such a vastly important subject. Maybe they could
    be changed. We'll see. But are you--you really are saying, all
    of you, that the Department of Justice, being the extension at
    the top of law enforcement, therefore by association, being the
    creators of this non-forensic DNA history somewhat inaccurate.
    To what extent, we don't know.
        Should not be those people who deal with certification,
    cannot be those people who deal with broader problems of the
    development of forensics? There needs to be some other group in
    order to protect the sanctity of pure science. Is that what
    you're saying, is being said?
        Dr. Gatsonis. No. The issue of no linking, of independence
    from law enforcement, had to do with the operations, the daily
    operations and the funding of the actual labs themselves.
        It's not about how certification is going to get done.
    That's a different question. And also, the fact that you need
    an organization that knows about the science to be able to
    organize it and direct it--that necessitates that it also be
    independent of the Department of Justice, which is not a
    scientific organization.
        It's not the NSF. It's not the NIH. It's not any----any of
    those organizations that develop, direct, and fund scientific
    research programs. It doesn't have that kind of background. So
    the DOJ has a role, but it's not the role that we have carved
    out for this national institute.
        The Chairman. Well, then, you gentlemen are all going to
    have to step forward when the nation needs you, to make this
    case, because it's awfully hard to keep an agency in existence,
    much less start a new one these days, and I say that without
    mirth.
        John Grisham, you disagreed.
        Mr. Grisham. No. I don't think that the DOJ can be a
    scientific agency. We have enough scientific agencies already
    who can do the work. I'm not advocating a new agency. We have a
    number of agencies who do great scientific work.
        But it's--you know, it's probably more cost-effective, or
    less, or more cost-effective to have the science do the work
    than try to make the DOJ a scientific agency. Their thrust,
    their mission, their goal is law enforcement.
        And I'm not--I'm not blaming DOJ, or law enforcement, or
    whatever, for bad science. It's just the way it's developed
    over--over decades. OK? It's time to clean up the bad science
    with scientists. It's time to set the standards with
    scientists.
        And once that's done, let law enforcement implement.
        The Chairman. So then, for a period of, let's say, 15 or 20
    years, the National Science Foundation, for example, could fill
    in that role? And then when and if DOJ and the whole, huge ship
    of law enforcement were gradually turned around on this, it
    could go back to DOJ?
        I'm not--I'm not being difficult. I'm just curious about
    this. It's an interesting point.
        Dr. Gatsonis. One recommendation that is not made in the
    report, but some of the professional societies have made
    afterwards, is, for instance, to have the National Institution
    of Standards take the role of an incubator.
        The Chairman. The best.
        Dr. Gatsonis. Yes. To be an incubator.
        The Chairman. That'd be the best. Yes.
        Dr. Gatsonis. I support this idea, but NIST has to be a
    real incubator. In other words, there has to be a statute of
    limitations, by the end of which they will deliver a new
    agency.
        The Chairman. Yes. They'd probably be thrilled to offload
    that responsibility. You're saying not. OK.
        Dr. Gatsonis. Yes. NIST is contiguous enough to the
    research. They do part of it and they have a enough of a
    background in this. So they could act as the incubator.
        I think larger agencies, NIH and so on, are too specialized
    in their directions to be able to go and actually do that sort
    of thing.
        The Chairman. Senator Boozman has a question and I think
    that'll be the final question. But I just want to say that, to
    me, this has been an absolutely wonderful hearing because of
    all the things that I don't know, and how embarrassed I am
    about that, and yet how excited I am by that.
        I mean, it's sort of the essence of a large fact of life,
    of an unmet need coming upon us in very drastic form, through
    writing, through Fred Zain, through all that kind of thing. And
    it's a huge sort of--it defines a large part of what America is
    and what American justice is.
        And yet, so few people know about it, as we go through the
    blur of computers and fast decisionmaking on some of these, on
    these television programs, which have an enormous effect. I
    mean, 75 million people watch CSI every week.
        Senator Boozman?
        Senator Boozman. Well, thank you, Mr. Chairman. And I'm
    like you. I really have enjoyed the hearing, but as you said
    earlier, it's difficult in the timeframe that we have.
        Something that we might consider at some point is maybe
    having a roundtable and getting this group, and perhaps NIST
    with us, DOJ, you know, to sit down and really kind of hash
    out, because as you pointed out, this is something that's not a
    problem that needs to be dealt with as government. I'm not
    looking to start a new agency.
        As I pointed out, if that solves problems, then we need to
    do that in internal medicine and everything else. But even if
    you did that, then you're talking about years and years as far
    as setting it up and getting the resources.
        But I do believe that, right now these are things that we
    can get to work on. Today, I think oversight has come out. Dr.
    Fenger, you're doing a great job of educating people to fill
    these roles.
        So we've got the problems with the standards of the
    science, but you also have to have some sort of accreditation
    for the people that are the people that are doing the science.
        And it's remarkable, Mr. Grisham, but as you pointed out,
    if you're a poor person who's being accused of capital murder,
    you can't always get an expert up there.
        This can be a do-or-die deal, literally, if you have that
    evidence come out, and then you do not have the ability to hire
    somebody.
        Those are very difficult disciplines that people go into.
    But the idea, then, that you don't have the resources to be
    able to refute that testimony is so important, that's a real
    problem, too. So we've got all kinds of problems in the system.
        I just appreciate you all being here and appreciate your
    testimony and you've really helped us with a lot of really
    thought-provoking ideas today.
        So thank you very much.
        The Chairman. And I, again, thank you and point out that it
    really takes quite a lot to catch the attention of the U.S.
    Congress near the end of its term. And you have done it. You've
    just been excellent and I totally thank you. Hearing adjourned.
        [Whereupon, at 4:20 p.m., the hearing was adjourned.]
                                A P P E N D I X

                  Prepared Statement of the Innocence Project
        Thank you Chairman Rockefeller, Ranking Member Hutchison, and
    members of the Committee, for holding today's hearing, ``Turning the
    Investigation on the Science of Forensics.'' This is a critical topic--
    our research into the causes of wrongful conviction reveals that the
    reliance on un-validated and/or improper forensics was the second-
    greatest contributing factor to those wrongful convictions--and we are
    grateful that the Committee is turning its attention to the National
    Academy of Sciences (NAS) report on forensics and to the complex issue
    of reform. In particular, we are pleased that the Committee with
    jurisdiction over science is looking into this issue given the
    scientific shortcomings identified by the NAS.
        The Innocence Project, affiliated with the Cardozo School of Law,
    was founded by co-directors Peter J. Neufeld and Barry C. Scheck in
    1992. The project is a national litigation and public policy
    organization dedicated to exonerating wrongfully convicted people
    through DNA testing and reforming the criminal justice system to
    prevent future miscarriages of justice. Without the development of DNA
    testing, there would be no Innocence Project; 281 factually innocent
    Americans would remain behind bars, and 17 of those 281 could have been
    executed.
        Given what those DNA exonerations have taught us about the
    shortcomings of forensic science, the Innocence Project is extremely
    thankful to Congress for authorizing and appropriating the funds
    responsible for the National Academies of Science Committee to
    undertake its two year study of the state of the nation's forensic
    science system. By convening some of the very best minds in the nation
    to focus on the needs and shortcomings of forensic practice and how to
    remedy them, the nation has been provided with both an alarm regarding
    the serious shortcomings that exist regarding forensic evidence, and a
    roadmap to addressing the major improvements in the forensic system
    necessary to ensure the most accurate evidence--and therefore justice--
    possible.
        As our review of DNA exonerations shows, unvalidated and improper
    forensics contributed to approximately 50% of wrongful convictions
    overturned by DNA testing. In the DNA exonerations alone, we have had
    wrongful convictions based on unvalidated or misapplied serological
    analysis, microscopic hair comparisons, bite mark comparisons, shoe
    print comparisons, fingerprint comparisons \1\, forensic geology (soil
    comparison), fiber comparison, voice comparison, and fingernail
    comparison \2\, among the many forensic disciplines that have produced
    these tragic miscarriages of justice in our courts. There have even
    been a few innocents whose convictions relied, in part, on shoddy DNA
    testing in the early years of its forensic application. It comes as no
    surprise to us that the NAS concluded: ``With the exception of nuclear
    DNA analysis, however, no forensic method has been rigorously shown to
    have the capacity to consistently, and with a high degree of certainty,
    demonstrate a connection between evidence and a specific individual or
    source.'' \3\ The overarching problem has been that all too frequently,
    these other forensic disciplines have been improperly relied upon to
    connect our innocent clients to crime scene evidence.
    ---------------------------------------------------------------------------
        \1\ Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March
    2009, p. 8.
        \2\ Ibid., p. 13.
        \3\ Strengthening Forensic Science in the United States: A Path
    Forward, Committee on Identifying the Needs of the Forensic Science
    Community, The National Academies Press (2009), p. 7. (Hereinafter NAS
    report).
    ---------------------------------------------------------------------------
        In contrast to DNA, the vast majority of non-DNA forensic assays
    have never been subjected to basic scientific research or federal
    review. Moreover, as pointed out by the NAS, neither the FBI nor the
    National Institute of Justice have, over the years, ``recognized, let
    alone articulated, a need for change or a vision for achieving it.
    Neither has full confidence of the larger forensic science community.
    And because both are part of a prosecutorial department of the
    government, they could be subject to subtle contextual biases that
    should not be allowed to undercut the power of forensic science.'' \4\
    Without a push for vigorous adherence to the scientific method,
    innocent people have gone to prison or death row while the real
    perpetrators remained at liberty to commit other violent crimes.
    ---------------------------------------------------------------------------
        \4\ Ibid., p. 16.
    ---------------------------------------------------------------------------
        Many non-DNA forensic assays have not been scientifically
    validated, and there is no formal apparatus in place to scrutinize
    developing forensic technology. Though the technology has changed over
    time, the sources of human error, misinterpretation, and misconduct
    have not. Most of the assays used in law enforcement have no other
    application; they were developed for the purpose of investigation,
    prosecution and conviction and took on a life of their own without
    being subjected to the rigors of the scientific process. Essentially,
    the assays were simply accepted as accurate. Many of these forensic
    disciplines--some of which are experience-based rather than data-
    based--went online with little or no scientific validation and
    inadequate assessments of their robustness and reliability.
        One case in point is the great strides that have been made in
    bitemark identification research by scientists inspired by the NAS
    report. While forensic dentists have been practicing bitemark
    identification for decades, rigorous research has demonstrated that the
    principles upon which bitemark identification is based are unfounded.
    Using cadaver models, a team of researchers led by Dr. Mary Bush at the
    University of Buffalo found that skin is a poor registration material
    for bitemarks--in some instances dentitions that did not make the mark
    matched a bitemark more closely than the actual set of teeth that
    created the bitemark.\5\,\6\ In subsequent studies, the
    research team established through two and three-dimensional statistical
    analysis of dental models, that dental shape matches could readily be
    found in given populations.\7\,\8\ Together, these studies
    show that statements of dental uniqueness with respect to bitemark
    analysis in an open population are unsupportable, and that distortion
    in skin can be substantial. These findings put into question the
    overall reliability and validity of bitemark analysis. Consider this--
    while this research began in earnest in 2009, bitemark identification
    evidence has been admitted in US courts since at least 1948.
    ---------------------------------------------------------------------------
        \5\ Bush MA, Miller RG, Bush PJ, Dorion RBJ. Biomechanical Factors
    in Human Dermal Bitemarks in a Cadaver Model. J Forensic Sci, 2009;
    54(1):167-76.
        \6\ Miller RG, Bush PJ, Dorion RBJ, Bush MA. Uniqueness of the
    Dentition as Impressed in Human Skin: A Cadaver Model. J Forensic Sci
    2009; 54(4):909-14.
        \7\ Sheets HD, Bush PJ, Brzozowski C, Nawrocki LA, Ho P, Bush MA.
    Dental shape match rates in selected and orthodontically treated
    populations in New York State: A 2 dimensional study. J Forensic Sci,
    2011; 56(3):621-6.
        \8\ Bush MA, Bush PJ, Sheets HD. Similarity and Match Rates of the
    Human Dentition In 3 Dimensions: Relevance to Bitemark Analysis. Int J
    Leg Med 2011; 125(6): 779-784.
    ---------------------------------------------------------------------------
        While there is research and work that establishes what needs to be
    done to improve various forensic practices, the fact is that no
    existing government entity, nor the forensics community itself, has
    been able to sufficiently muster the resources nor focus the attention
    necessary to use the existing information as a launching pad to
    comprehensively improve the integrity of non-DNA forensic evidence. The
    NAS Report is the first step--and a tremendous one--toward fully
    establishing and acting upon what we already know. From the perspective
    of justice and public safety, it is tragic that it has taken this long
    to act on the desperate need to improve the quality of forensic
    evidence. Given the clear and comprehensive message delivered by the
    NAS on this subject, further delay would be unconscionable.
        We therefore urge the Senate Commerce Committee to develop
    legislation that would make use of existing scientific agencies of the
    U.S. Government to conduct the research and standardization that the
    NAS said is so critical. A scientific funding agency like the National
    Science Foundation (NSF) can be tasked with funding rigorous scientific
    research that will be methodologically sound and will generate
    unassailable work. After a comprehensive assessment of the validity and
    reliability of various forensic science disciplines, the National
    Institute of Standards and Technology (NIST) can lend its expertise to
    basic and applied standard setting. Given NIST's reputation as a highly
    respected and admired standard-setting agency, as well as its history
    of employing Nobel prize-winning scientists who conduct superb research
    and translate basic science to applied commercial standards and its
    tradition of objective, independent, science-grounded work, we agree
    with the NAS report that NIST would make a sensible partner for setting
    those standards. The Department of Justice (DOJ) can then put these
    independently developed standards into practice by overseeing the
    accreditation of laboratories and certification of forensic examiners.
    A federal effort is needed to ensure that the best standard and a
    singular standard is implemented so that we don't have 50 states
    operating under 50 definitions of ``science''; forensic science in
    America needs one standard of science so we can have one standard for
    justice.
        The Innocence Project believes that there needs to be a strong
    relationship between the independent scientists charged with
    undertaking the research and standard-setting functions and the expert
    practitioners who use these techniques each day. It is those users who
    will abide by those standards, so it is essential they be able to adopt
    and follow them. We also believe that for the endeavor to succeed, it
    is important that the new standards be phased-in without causing a
    significant disruption to the criminal justice system. Therefore, we
    believe that practitioners have a critical role to play in advising and
    providing feedback to the scientific research and standard setting
    process. Advice and feedback should also be divined from the vast
    experience accumulated through the apprenticeship model of learning
    among forensic practitioners, which holds great value; that body of
    expertise would be a helpful addition to the rigorous scientific
    research to establish the parameters of a forensic discipline.
        Research scientists, however, who have a background in physics,
    biology, chemistry, statistics, cognitive science, engineering, and
    other sciences, from academic institutions or in science based agencies
    of the Federal government rather than in law enforcement agencies, have
    the training to scrutinize and improve the current body of research.
    The absence of an independent research infrastructure, upon which
    medicine, industry, and technology can rely, has prevented the full
    development of the field of forensic science. Despite good intentions
    and much specialized forensic knowledge, forensic examiners do not have
    the methodological training and specific research knowledge essential
    to develop empirical studies that will withstand criticism and create a
    comprehensive frame for forensic science reform. Forensic science is a
    multi-disciplinary field and the engagement, input, and leadership of
    the scientists, engineers, and statisticians are critically needed for
    reform to work and to restore confidence in the accuracy and
    reliability of forensics.
        It is time for a serious commitment to providing an ongoing and
    permanent scientific system of support for forensic science in order to
    ensure ongoing evaluation and review of current and developing forensic
    science techniques, technologies, assays, and devices; and continued
    government leadership, both publicly and through private industry, in
    the research and development of improved technology with an eye toward
    future economic investments that benefit the public good and the
    administration of justice. The impact of rigorous scientific research
    will be enormous. 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. As the forensic
    market expands to meet this global need, more jobs will be created as
    scientists are engaged in research and more Americans are trained to
    conduct forensic analyses under American developed protocols and
    standards. However, as the United States begins to make greater
    investments in forensic technologies, it is even more important that
    the underlying science of the forensic techniques used in these
    technologies are understood and developing technologies scrutinized
    before they are implemented so that we do not find ourselves in the
    same position in the future.
        The Innocence Project understands that to implement the complete
    package of reforms recommended in the NAS report may take years.
    However, we believe that there are steps the government can take before
    wholesale reform is completed. In the interim period, we can do our
    best to ensure that forensic science is applied to its currently
    supported parameters. Our first suggestion is to direct the National
    Science Foundation (NSF) to set a research agenda for future forensic
    science research. Up to this point, the National Institute of Justice
    (NIJ) has led research activity regarding forensic disciplines. While
    many of their reports have recommended validity and reliability
    research for many non-DNA forensic disciplines, and NIJ has issued
    recent grant solicitations to fund basic validation research, the
    agency has not proposed a clear roadmap for the specific research needs
    for each forensic science discipline addressed in Chapter 5 of the NAS
    report.\9\,\10\ Forensic science is a multidisciplinary
    field that requires the expertise of life and physical scientists, many
    of whom are not aware of the opportunities inherent in this nascent
    field. Development of a specific research agenda will allow scientists
    to identify the contributions they can make to growing the research
    engine of forensic science. A recent NAS study on the NIJ found the
    grantmaking function of the entity to be greatly hampered by the dearth
    of ``researchers'' or staff with a comprehensive scientific research
    background to administer scientific grants.\11\ Additionally, a recent
    DOJ Inspector General report regarding the NIJ's grant award practices
    found deficiencies in the agency's ability to demonstrate a fair and
    open competitive grant making practice.\12\ For this reason, the NSF
    would serve as the ideal agency for developing a comprehensive research
    agenda for the forensic sciences.
    ---------------------------------------------------------------------------
        \9\ National Institute of Justice, Forensic Sciences: Review of
    Status and Needs (1999).
        \10\ National Institute of Justice, Status and Needs of Forensic
    Science Service Providers: A Report to Congress (2004).
        \11\ National Academy of Sciences, Strengthening the National
    Institute of Justice (2010).
        \12\ U.S. Department of Justice Office of the Inspector General
    Audit Division, Audit of NIJ Practices for Awarding Grants and
    Contracts in FY2005-FY2007 (2009), iii.
    ---------------------------------------------------------------------------
        A second immediate step Congress and the Administration could take
    is to direct NIST to design a standardized requirement, format, and
    terminology for laboratory reports that serves multiple consumers in
    the criminal justice system. In order for forensic science to mature to
    a discipline with a strong scientific culture, it will be important for
    the reports that laboratories produce to reflect the principles of
    science. Currently, there are no national or even discipline-based
    standards for report writing and courtroom testimony. Many, if not most
    of the wrongful convictions we documented arose when criminalists wrote
    misleading reports or offered testimony which grossly exaggerated the
    probative value of the forensic evidence. By requiring laboratory
    reports to be more comprehensive and for all opinions and conclusions
    to be supported by data or scientific literature, judges, attorneys,
    and fact finders will be provided the same base of information to
    understand the testing and results in a given case.
        A third interim step would be to adopt the discovery rules of the
    Federal Rules of Civil Procedure. Under Rule 26, every expert must
    submit ``a complete statement of all opinions the witness will express
    and the basis and reasons for them; the facts of data considered by the
    witness in forming them'' and ``any exhibits that will be used to
    summarize or support them.'' \13\ In contrast to criminal courts,
    experts in civil courts are required to document their entire testimony
    prior to taking the stand.
    ---------------------------------------------------------------------------
        \13\ Federal Rules of Civil Procedure, Rule 26, 2(b), i-iii.
    ---------------------------------------------------------------------------
        Science can light the way to the path forward and every effort
    should be made to support innovation and research. Post-conviction DNA
    exonerations have shown the catastrophic consequences of such a lack of
    research, standards, and oversight. It is clear that the nation's
    forensic science community is ready and willing to work with the
    federal government, law enforcement, and other scientists to ensure a
    brighter future for forensic science. Science-based forensic standards
    and oversight will increase the accuracy of criminal investigations,
    strengthen criminal prosecutions, protect the innocent and the victims,
    and enable law enforcement to consistently focus its resources not on
    innocent suspects, but on the true perpetrators of crimes. For as the
    nation's post-conviction DNA exonerations have proven all too clearly,
    when the system is focused on an innocent suspect, defendant or
    convict, the real perpetrator remains free to commit other crimes.\14\
    With your support, we will not only significantly enhance the quality
    of justice in the United States, but we will also minimize the
    possibility that tragedies like that endured by the nation's 281 (and
    counting) exonerees and their families will needlessly be repeated time
    and again.
    ---------------------------------------------------------------------------
        \14\ In the wake DNA exonerations of the wrongfully convicted, that
    same DNA analysis has enabled the identification of 131 of the true
    suspects and/or perpetrators of those crimes.
    ---------------------------------------------------------------------------
                                     ______

                               American Statistical Association
                                      Alexandria, VA, December 20, 2011

    Hon. John D. Rockefeller IV,
    Chairman,
    Commerce, Science, and Transportation Committee,
    U.S. Senate,
    Washington, DC.

    Hon. Kay Bailey Hutchison,
    Ranking Member,
    Commerce, Science, and Transportation Committee,
    U.S. Senate,
    Washington, DC.

    Dear Chairman Rockefeller and Ranking Member Hutchison,

        Thank you for your attention to improving the science in forensic
    science and, in particular, for holding the December 7 hearing entitled
    ``Turning the Investigation on the Science of Forensics.''
        As experts in data collection, analysis, and dissemination, as well
    as experimental design, statisticians have played an important role in
    the constructive criticism of forensic science and can play an
    important role in its reform.
        I write to again offer the help of the American Statistical
    Association (ASA) as you move forward and to provide materials for the
    written record of the hearing.
        I enclose letters I sent Chairman Rockefeller and Chairman Leahy
    earlier this year that urge forensic science reform overseen by an
    independent agency. I also attach a statement by the ASA Board of
    Directors endorsing the National Academies Strengthening Forensic
    Science in the United States recommendations and citing the importance
    of sound statistical practice to the success of a forensic science
    institute.
        The ASA stands by its endorsement of an independent body to oversee
    forensic science reform, but we recognize the difficult fiscal
    environment. We urge you to work with the Administration to facilitate
    forensic science reform to the extent possible in the short run.
    Options include greater transparency by Federal and federally funded
    laboratories of their forensic science research reports, protocols and
    related materials; research support by science agencies to bolster the
    science in forensic science disciplines; development, definition, and
    enforcement of standards; and education of judges, defense attorneys
    and prosecutors on forensic science issues.
                Sincerely,
                                     Robert N. Rodriguez, Ph.D.
                                                        2012 President,
                                          American Statistical Association.

    Enclosures: March 31, 2011 letters to Chairman Rockefeller and Chairman
    Leahy; Statement by the ASA Board of Directors
                                     ______

                               American Statistical Association
                                         Alexandria, VA, March 31, 2011
    Hon. John D. Rockefeller IV,
    Chairman,
    Senate Commerce, Science, and Transportation Committee,
    United States Senate,
    Washington, DC.

    Dear Chairman Rockefeller,

        Thank you for making forensic science reform a priority for the
    Commerce, Science, and Transportation Committee in 2011. The forensic
    science system has serious problems that are undermining confidence in
    our justice system, as the National Academies' Strengthening Forensic
    Science in the United States: A Path Forward reveals. A justice system
    informed by solid science is imperative. To address the systemic
    deficiencies, Strengthening Forensic Science recommended measures that
    amount to no less than changing the culture of the forensic science
    community.
        The board of directors for the American Statistical Association
    (ASA) issued a statement in April 2010 endorsing Strengthening Forensic
    Science, including its recommendations. On behalf of the ASA Board of
    Directors, I write to urge you to enact these recommendations,
    especially the creation of a National Institute of Forensic Science
    (NIFS) with the independence necessary to address the profound issues
    identified in Strengthening Forensic Science. A new agency is necessary
    because of the strong leadership required to address these issues and
    the current lack of any governance structure in the forensic science
    enterprise.
        We believe an independent agency is the ideal and respectfully ask
    you to explore such an option to the extent possible. If the current
    environment precludes the establishment of a stand-alone NIFS, the
    National Institute of Standards and Technology (NIST) could serve as
    the incubator for NIFS, if the following conditions are met. Most
    importantly, placing NIFS within NIST should be temporary, with the
    legislation specifying that independence be considered after, say,
    three years and realized within, say, five years. NIFS also should have
    the autonomy and resources within NIST to meet its responsibilities and
    foster its independence. We emphasize the importance of a properly
    funded NIFS so that it doesn't tax the many other important and varied
    NIST activities. The guidance around Recommendation 1 in Strengthening
    Forensic Science also should be closely heeded in the creation of a
    NIFS temporarily hosted at NIST.
        An independent NIFS--either from inception or after a short time in
    NIST--is important to the long-term success of NIFS because of the
    importance of strong relationships with the many stakeholder
    communities. These communities range from the Department of Justice
    (DOJ) to the forensic science community to scientists of other
    disciplines (typically associated with the National Science Foundation,
    National Institutes of Health, or other federal agencies). Hosting NIFS
    indefinitely at NIST will not develop the stature among the varied
    stakeholders necessary to transform the forensic science culture.
        Independence from law enforcement agencies is especially
    fundamental to a successful NIFS for a number of reasons. A forensic
    science institute hosted at the DOJ, for example, presents inherent
    potential conflicts of interest because of DOJ's mission to enforce the
    law. Furthermore, because DOJ is so integrally tied to the forensic
    science culture and the current problems, a forensic science institute
    must be independent of DOJ to realize the necessary changes in a timely
    manner. Finally, DOJ lacks the expertise and infrastructure to support
    the scientific needs of a forensic science institute.
        Thank you for your consideration. I attach a copy of the statement
    by the ASA Board of Directors endorsing the Strengthening Forensic
    Science report and citing the importance of sound statistical practices
    to the success of a forensic science institute.
                Sincerely,
                                     Robert N. Rodriguez, Ph.D.
                                                        2012 President,
                                          American Statistical Association.
                                     ______

                               American Statistical Association
                                         Alexandria, VA, March 31, 2011
    Hon. Patrick Leahy,
    Chairman,
    Senate Judiciary Committee,
    United States Senate,
    Washington, DC.

    Dear Chairman Leahy,

        Thank you for your forensic science reform efforts in S. 132, ``The
    Criminal Justice and Forensic Science Reform Act.'' A justice system
    informed by solid science is imperative. The 2009 National Academies'
    report Strengthening Forensic Science in the United States: A Path
    Forward revealed the many weaknesses in forensic science and
    recommended measures that amount to no less than changing the culture
    of the forensic science community.
        While creating an office of forensic science--as your bill does--
    addresses a Strengthening Forensic Science recommendation, its
    placement in the Department of Justice (DOJ) would not address the
    underlying issues. As Strengthening Forensic Science notes, DOJ's
    ``principal mission is to enforce the law and defend the interests of
    the United States according to the law.'' A DOJ-hosted OFS therefore
    presents potential conflicts of interest precluding the independence
    required for a forensic science office to be effective at serving the
    entire forensic science community, including defendants. Furthermore,
    because DOJ is so integrally tied to the forensic science culture and
    current problems, a forensic science office must be independent of the
    DOJ to realize the necessary changes in a timely manner. Finally, DOJ
    lacks the expertise and infrastructure to support the scientific needs
    of a forensic science institute. The attached excerpt from
    Strengthening Forensic Science persuasively and compellingly captures
    our sentiments.
        For these reasons, the American Statistical Association does not
    support S. 132 and we respectfully urge you to reconsider the placement
    of OFS in DOJ.
        Thank you for your consideration. In addition to the Strengthening
    Forensic Science excerpt about DOJ hosting a forensic science office, I
    attach a copy of the statement by the ASA Board of Directors endorsing
    Strengthening Forensic Science and citing the importance of sound
    statistical practices to the success of an office of forensic science.
    I also attach the June 9, 2010, letter from 2009 ASA President Sally
    Morton to you regarding ``Outline of Draft Forensic Reform
    Legislation.''
                Sincerely,
                                    Robert N. Rodriguez, Ph.D.,
                                                        2012 President,
                                          American Statistical Association.

        Excerpt from Strengthening Forensic Science in the United States: A
    Path Forward, executive summary, p. 17:

            There was also a strong consensus in the committee that no
            existing or new division or unit within DOJ would be an
            appropriate location for a new entity governing the forensic
            science community. DOJ's principal mission is to enforce the
            law and defend the interests of the United States according to
            the law. Agencies within DOJ operate pursuant to this mission.
            The FBI, for example, is the investigative arm of DOJ and its
            principal missions are to produce and use intelligence to
            protect the Nation from threats and to bring to justice those
            who violate the law. The work of these law enforcement units is
            critically important to the Nation, but the scope of the work
            done by DOJ units is much narrower than the promise of a strong
            forensic science community. Forensic science serves more than
            just law enforcement; and when it does serve law enforcement,
            it must be equally available to law enforcement officers,
            prosecutors, and defendants in the criminal justice system. The
            entity that is established to govern the forensic science
            community cannot be principally beholden to law enforcement.
            The potential for conflicts of interest between the needs of
            law enforcement and the broader needs of forensic science are
            too great. In addition, the committee determined that the
            research funding strategies of DOJ have not adequately served
            the broad needs of the forensic science community. This is
            understandable, but not acceptable when the issue is whether an
            agency is best suited to support and oversee the Nation's
            forensic science community. In sum, the committee concluded
            that advancing science in the forensic science enterprise is
            not likely to be achieved within the confines of DOJ.
                                     ______

                 American Statistical Association Statement on
                    Strengthening Forensic Science, 4/17/10
        The 2009 National Academies' report, Strengthening Forensic Science
    in the United States: A Path Forward, \1\ identified many serious
    deficiencies in the nation's forensic science system and called for
    major reforms and new research. The report came after years of
    critiques of specific forensic science practices as well as calls for
    reform but especially broke new ground by offering a comprehensive
    review and adding the authority of the National Academies.
    ---------------------------------------------------------------------------
        \1\ http://www.nap.edu/catalog.php?record_id=12589.
    ---------------------------------------------------------------------------
        Statisticians have played an important role in this constructive
    criticism and can play an important role in the reform urged by the
    National Academies' report. Indeed, the Strengthening Forensic Science
    report cites examples of the lack of sufficient recognition for sources
    of variability and their effects on uncertainties in forensic science
    analyses. Statisticians are vital to establishing measurement
    protocols, quantifying uncertainty, designing experiments for testing
    new protocols or methodologies and analyzing data from such
    experiments.
        The American Statistical Association Board of Directors recognizes
    the urgent need to improve forensic science because of its pivotal role
    in our judicial system and therefore endorses Strengthening Forensic
    Science in the United States: A Path Forward 1 and the recommendations
    therein. To better achieve many of the report recommendations, the
    report urges the establishment of a separate institute for forensic
    science (Recommendation 1 of the report). The board notes that sound
    statistical practices are essential for the proposed institute to
    achieve its mission. Specific examples include:

      1.  Current and newly developed forensic practices should be assessed
            using properly designed experiments and data analytic methods.

      2.  Statistical methods based on established principles and
            procedures should be used for the analysis of data, including
            estimated error rates.

      3.  Novel methods (beyond variants of established methods) developed
            for the analysis of data should be reviewed in mainstream
            scientific journals that include statistically qualified
            experts as reviewers.

      4.  Modern statistical quality control and quality assurance
            procedures should be used to assure that measurements,
            procedures, and testimony are of high quality.

      5.  Proficiency tests should use accepted statistical designs that
            are, whenever possible, double blind to avoid testing-response-
            grading biases.

      6.  All expert reports should be available to interested parties and
            sufficient supporting data and information provided to permit
            independent review (including replication and verification of
            findings).
    Background
        The 2009 National Academies' Report Strengthening Forensic Science
    in the United States: A Path Forward provided 13 recommendations
    including the establishment of an independent body, the National
    Institute for Forensic Science, to facilitate the development of
    scientific research and standard practices in forensic science. The
    report describes the following requirements for the institute:

        It must be an independent federal agency established to
            address the needs of the forensic science community

        It must have a culture that is strongly rooted in science,
            with strong ties to the national research and teaching
            communities, including federal laboratories

        It must have strong ties to state and local forensic
            entities, as well as to the professional organizations within
            the forensic science community

        It must not be in any way committed to the existing system,
            but should be informed by its experiences

        It must not be part of a law-enforcement agency

        It must have the funding, independence, and sufficient
            prominence to raise the profile of the forensic science
            disciplines and push effectively for improvements

        It must be led by persons who are skilled and experienced
            in developing and executing national strategies and plans for
            standards setting; managing accreditation and testing
            processes; and developing and implementing rulemaking,
            oversight, and sanctioning processes

        The Strengthening Forensic Science noted that no federal agency
    exists that meets these well-considered and important criteria and
    therefore recommended the development of a new and separate body. We
    support the Strengthening Forensic Science recommendation for
    developing the institute. We also second their emphasis on the
    institute having the independence necessary to produce the needed
    scientific outcomes. Any perception of outside influence on the
    institute's products will undermine its credibility. Such independence
    is a key principle for statistical agencies as made clear in the
    National Academies' Principles and Practices for a Federal Statistical
    Agency (Fourth Edition, 2009). Indeed, although the proposed Institute
    is not a statistical agency, much of the content of Principles and
    Practices is relevant to an institute of forensic science.
        For the statistical community it is especially critical that the
    new agency use appropriate statistical practices to raise the level of
    forensic science in the United States. Here we elaborate on six sound
    statistical practices listed above as essential for the proposed
    institute to achieve its mission.

        1. The need for well-designed experiments--Current forensic
    practices have not always been supported by valid assessments that
    yield defendable and transparent error rates. We view this as a
    critical need. As Donald Kennedy, then Editor-in-Chief of Science,
    noted in an Editorial,\2\ ``It's not that fingerprint analysis is
    unreliable. The problem, rather, is that its reliability is unverified
    either by statistical models of fingerprint variation or by consistent
    data on error rates. Nor does the problem with forensic methods end
    there. The use of hair samples in identification and the analysis of
    bullet markings exemplify kinds of `scientific' evidence whose
    reliability may be exaggerated when presented to a jury.'' The
    following examples demonstrate how assessments that have been done are
    too often flawed:
    ---------------------------------------------------------------------------
        \2\ Kennedy, D., ``Forensic Science: Oxymoron?,'' Science, (2003),
    302, p. 1625.

        The so-called FBI 50K fingerprint comparison study was
            particularly weak. In an attempt to establish the uniqueness of
            fingerprints, the FBI contracted with a company to examine
            50,000 fingerprints against each other and quantitatively
            assess the degree of similarity. David H. Kaye exposed this
            test as unsound.\3\ Quoting from the abstract of his article:
            ``Forensic scientists or analysts concerned with
            `individualization' often presume that features such as
            fingerprint minutia are unique to each individual. In the
            United States, defendants in criminal cases have been demanding
            proof of such assumptions. In at least two cases, the
            government of the United States has successfully relied on an
            unpublished statistical study prepared specifically for
            litigation to demonstrate the uniqueness of fingerprints. This
            article suggests that the study is neither designed nor
            executed in a way that can show whether an individual's
            fingerprint impressions are unique.'' Issues with the 50K study
            include comparing a digitized image of a fingerprint to itself
            rather than a second fingerprint of the same finger (even
            though the latter is the relevant comparison), using
            unrealistic estimates for standard error, and poor modeling of
            the underlying distribution used too make inferences.
    ---------------------------------------------------------------------------
        \3\ Kaye, D.H., ``Questioning a Courtroom Proof of the Uniqueness
    of Fingerprints,'' International Statistical Review (2003), 71.3, p
    521-533.

        In a recent review of fingerprint validation, Haber and
            Haber \4\ conclude: ``We analyze evidence for the validity of
            the standards underlying the conclusions made by fingerprint
            examiners. We conclude that the kinds of experiments that would
            establish the validity of ACE-V [Analysis-Comparison-
            Evaluation-Verification--the current standard fingerprint
            methodology] and the standards on which conclusions are based
            have not been performed. These experiments require a number of
            prerequisites, which also have yet to be met, so that the ACE-V
            method currently is both untested and untestable.''
    ---------------------------------------------------------------------------
        \4\ Haber, L., and Haber, R.N., ``Scientific validation of
    fingerprint evidence under Daubert,'' Law, Probability and Risk (2008),
    7, p. 87.)

        2. Use of well-accepted statistical methods for analysis of data--
    It is critical that appropriate statistical methods be used to analyze
    data obtained in support of forensic methods. The validity of these
    methods should be demonstrated, preferably in peer-reviewed statistical
    or mainstream scientific journals before being used in litigation. This
    ---------------------------------------------------------------------------
    has not always been the case.

        Compositional analysis of bullet lead (CABL): The FBI
            practice of comparing crime scene bullets with bullets found in
            the possession of a potential suspect illustrates the
            consequences of a poorly designed analysis. The ``working
            hypothesis'' justifying CABL is that the chemical concentration
            of the lead used to make a `batch' of bullets provide a unique
            signature, so bullets that come from the same batch of lead
            should have the same concentrations of certain trace elements.
            To show a low error rate for matching bullets the FBI said that
            it selected one bullet from each of 1837 cases and experimental
            bullets randomly and matched them to each other. The FBI
            claimed the bullets were chosen to be representative of the
            population of manufactured bullets, but also acknowledges that
            the bullets in this set were ``selected''. Spiegelman and
            Kafadar provided indications that the ``selection'' was neither
            random nor representative.\5\ Consequently, the way that these
            bullets were chosen led to an indefensibly low error rate (see
            Ch 3 of Reference 6). Finally, the ``statistical test'' used to
            compare bullets was an unjustified modification of Student's t
            test. The reaction from the scientific community and the media
            ultimately led the FBI to both abandon the procedure and issue
            a letter to many convicts that the testimony used against them
            did not have scientific support.
    ---------------------------------------------------------------------------
        \5\ Spiegelman, C.H., and Kafadar, K, ``Data Integrity and the
    Scientific Method: the Case of Bullet Lead Data as Forensic Evidence,''
    Chance (2006), 19.2, p. 17-25.

        3. Rigorous review of new data analysis methods--Novel methods for
    analysis of data in cases do not always have support that would pass
    ---------------------------------------------------------------------------
    scientific muster if subject to peer review. Two illustrations are:

        The FBI had used an ad-hoc data clustering method
            (``chaining'') in CABL that led to clustering together bullets
            of very different compositions that were claimed to have come
            from the same batch.5,6 The 2004 NRC report \6\
            showed a high rate of false matches; as a result, chaining is
            no longer used by the FBI.
    ---------------------------------------------------------------------------
        \6\ Forensic Analysis: Weighing Bullet Lead Evidence, National
    Research Council, 2004; http://www.nap.edu/catalog.php?record_id=10924.

        DNA profiling is a powerful tool for identification when a
            single source of DNA is present in an evidence sample (or a
            resolvable mixture of multiple sources). But no consensus yet
            exists on the analysis of more complex mixtures of DNA (using
            the current, 15-year old STR methodology) where ``allelic
            dropout'' is present due to poor quality or limited quantity of
            sample. In 2006, the DNA commission of the International
            Society of Forensic Genetics issued a report on the
            situation.\7\ Its abstract states: ``The purpose of the group
            was to agree on guidelines to encourage best practice that can
            be universally applied to assist with mixture interpretation..
            . .Our discussions have highlighted a significant need for
            continuing education and research into this area. We have
            attempted to present a consensus from experts but to be
            practical we do not claim to have conveyed a clear vision in
            every respect in this difficult subject. For this reason, we
            propose to allow a period of time for feedback and reflection
            by the scientific community.'' Despite the continuing lack of
            consensus regarding the analysis of complex DNA mixtures, crime
            laboratory technicians often make strong and unqualified
            statistical statements in court about the strength of such
            evidence using ad hoc and unsupported statistical methods.
    ---------------------------------------------------------------------------
        \7\ Gill, P., et al. ``DNA commission of the International Society
    of Forensic Genetics: Recommendations on the interpretation of
    mixtures,'' Forensic Science International (2006), 160 p. 90-101.

        4. Modern statistical quality control and quality assurance
    procedures--Forensic laboratories should have in place appropriate
    quality control procedures to ensure high-quality measurements,
    ---------------------------------------------------------------------------
    standardized procedures, and valid testimony.

        The Clinical Laboratory Improvement Amendments (CLIA),
            passed by Congress in 1988, established ``quality standards for
            all laboratory testing to ensure the accuracy, reliability and
            timeliness of patient test results regardless of where the test
            was performed.'' \8\ Forensic laboratories are explicitly
            exempt from the CLIA standards (as are some other categories
            such as research laboratories that ``do not report patient-
            specific results''). The College of American Pathologists do
            regulate some forensic practices such as Forensic Pathology,
            but such regulation external to the profession is the exception
            rather than the rule in forensic science.
    ---------------------------------------------------------------------------
        \8\ See, for example, http://www.fda.gov/MedicalDevices/
    DeviceRegulationandGuidance/IVD
    RegulatoryAssistance/ucm124105.htm.

        5. Double-blind proficiency testing--Existing forensic associations
    recognize the need for proficiency testing. Unfortunately existing
    proficiency tests do not always mirror the level of complexity found in
    actual practice and are rarely (if ever) double blind. As is well known
    in medical research the latter can lead to biased evaluations. Examples
    establishing the need for more challenging tests and the potential
    ---------------------------------------------------------------------------
    value of blind tests are described below:

        Historically, even well established areas of forensic
            science did not implement appropriate proficiency testing until
            relatively recently. For example, in 1995 the Collaborative
            Testing Service (CTS) administered a fingerprint proficiency
            test. According to David Grieve, then editor Journal of
            Forensic Identification,\9\ ``the CTS latent print proficiency
            test was designed, assembled, and reviewed by those
            representing the IAI [International Association for
            Identification], thus making it the first such examination
            authorized by the association.'' Its results were unanticipated
            and illustrate how important such tests are: ``Of the 156
            respondents, only 68, or 44%, had correctly identified the five
            latent impressions as well as correctly noted the two
            eliminations.'' \9\ Grieve went on to described the reaction of
            the forensic community to the results of the CTS test as
            ranging from ``shock to disbelief.'' \9\
    ---------------------------------------------------------------------------
        \9\ Grieve, D., ``Possession of Truth,'' Journal of Forensic
    Identification (1996), 46, p. 521.

        A 2008 Champion paper \10\ by Adina Schwartz includes a
            quotation that addresses the importance of appropriate testing,
            ``One examiner who took the 2006 CTS cartridge case test
            commented, `This test was straightforward and very easy. It
            took only a few minutes to make correct associations using
            toolmarks devoid of subclass influence . . . I suggest that you
            consider making the test more of a challenge in order to
            determine an error rate really reflective of actual casework
            where borderline cases are not uncommon.' '' This is an example
            of a test that is too easy and not blind in any manner.
    ---------------------------------------------------------------------------
        \10\ Schwartz, A, ``Challenging Firearms and Toolmark
    Identification-Part One,'' The Champion (2008), XXXII.8, p. 10-19; and
    ``Challenging Firearms and Toolmark Identification-Part Two,'' The
    Champion (2008), XXXII.9, p. 44-52.

        A study published by Dror, Charlton, and Peron in 2006 \11\
            demonstrates how strong contextual biases can be and thus how
            important blinding is. In the study, they told five experienced
            fingerprint experts from around the world (including the USA)
            that they were to look at a reference fingerprint from Brandon
            Mayfield (the American attorney wrongfully identified as
            matching a latent fingerprint found in the 2004 Madrid
            terrorist train bombing) to see if they thought there was a
            match between his print and the 2004 Madrid latent. Three
            experts said there was no match and one was ``not sure.'' The
            participants were in fact shown prints (reference and latent)
            from their own cases (not the Spanish train suspect) where they
            had previously declared a match. Four of the five participants
            changed their opinion, suggesting the existence of contextual
            bias.
    ---------------------------------------------------------------------------
        \11\ Dror, I.E., Charlton, D., Peron, A.E., ``Contextual
    information renders experts vulnerable to making erroneous
    identifications,'' Forensic Science International (2006), 156.1, p. 74-
    78

        Double blind proficiency studies have long been used to
            assess the accuracy of many types of diagnostic and screening
            procedures. A survey by Gastwirth (1987) \12\ provides a number
            of examples, including the 1984 paper by Morgan \13\ both of
            which demonstrate the long recognized need for double blind
            testing.
    ---------------------------------------------------------------------------
        \12\ Gastwirth, J.L., ``The Statistical Precision of Medical
    Screening Procedures: Application to Polygraph and AIDS Antibodies Test
    Data,'' Statistical Science (1987), 2, p. 213-238.
        \13\ Morgan, J.P. ``Problems of mass urine screening for misused
    drugs.'' Journal of Psychoactive Drugs, (1984), 16, p. 305-317.

        6. Public Availability of Expert Reports--Any statistician who has
    tried to obtain supporting data for a published paper but met
    resistance from an uncooperative author, knows the difficulty of
    verifying or testing the conclusions in that paper. Unlike civil cases,
    discovery in criminal cases is often much more limited, and similar
    problems arise. It is also the case that some law enforcement
    organizations will conduct studies to support a methodology but not
    make the supporting data available to scientists interesting in
    ---------------------------------------------------------------------------
    reviewing their findings, as the following example illustrates:

        In the early 1990s, when the FBI RFLP population database
            (consisting in part of samples from FBI agents) was the primary
            basis for published theoretical analyses used justifying case
            work calculations, the FBI refused to make its database
            available to independent scholars who wished to subject those
            published analyses to critical scrutiny (unless ordered in some
            cases by a court and even then protective orders were sought to
            prevent further dissemination of the database. (Note: this was
            not an offender or forensic casework database, but a database
            collected solely for statistical analyses.) One statistician
            who encountered this problem was Seymour Geisser: ``After
            submitting his article to the American Journal of Human
            Genetics, Professor Geisser was asked to obtain permission from
            the FBI to use their original data rather than the data
            submitted by the FBI to defense attorneys in court cases.
            Geisser then requested this data from Dr. Budowle, the top FBI
            DNA scientist. The FBI informed Geisser that (1) the FBI had
            made commitments earlier to other scientists (Chakraborty,
            Devlin, Risch, and Weir) and therefore his study must not
            conflict with their studies, (2) the FBI data may be used only
            in a joint collaboration with Dr. Budowle, (3) the use of the
            data was restricted to this one paper, and (4) all authors must
            agree to the entire contents of a final manuscript prior to
            submission to a journal.'' \14\ (See also Reference \15\, and
            especially footnote 23 therein.)
    ---------------------------------------------------------------------------
        \14\ Giannelli, P.C., ``Book Review: The DNA Story: An Alternative
    View,'' [book review of ``And the Blood Cried out by Harlan Levy,'']
    The Journal of Criminal Law and Criminology, (1997) 88.1, p. 380-422.
        \15\ Thompson, W. C., ``Evaluating the Admissibility of New Genetic
    Identification Tests: Lessons from the DNA War,'' The Journal of
    Criminal Law and Criminology (1993), 84.1, p. 22-104.
    ---------------------------------------------------------------------------
                                     ______

    Prepared Statement of Lisa Wayne, President, on Behalf of the National
                    Association of Criminal Defense Lawyers
        Chairman Rockefeller, Ranking Member Hutchison and Members of the
    Committee:

        On behalf of the National Association of Criminal Defense Lawyers
    (NACDL), I am writing to express the views of the criminal defense bar
    on the state of forensic science and the need for specific reforms. We
    understand that not all of the reforms proposed here are within the
    Committee's purview, but we hope that this statement serves as a useful
    overview of the type of systemic and comprehensive reform that is
    needed to ensure the reliability of forensic evidence and the integrity
    of our criminal justice system.
        The National Association of Criminal Defense Lawyers (NACDL) is the
    preeminent organization in the United States advancing the mission of
    the Nation's criminal defense lawyers to ensure justice and due process
    for persons accused of crime or other misconduct. A professional bar
    association founded in 1958, NACDL's 10,000-plus direct members in 28
    countries--and 90 state, provincial and local affiliate organizations
    totaling more than 40,000 attorney's--include private criminal defense
    lawyers, public defenders, active U.S. military defense counsel, law
    professors and judges committed to preserving fairness within America's
    criminal justice system.
        Fundamental components of the representation of the accused are
    that all defendants have the Fifth Amendment right to due process of
    law and the Sixth Amendment rights to present evidence, to confront
    witnesses against them, to a fair trial, and to the effective
    assistance of counsel.
        The great number of DNA and other exonerations undermines the
    belief that the criminal justice system correctly identifies the
    perpetrators of criminal offenses and prevents wrongful convictions.
    Especially troubling is the role that invalid and unreliable forensic
    evidence has at times played in contributing to those wrongful
    convictions. By way of illustration, a recent study observed that
    forensic science practitioners called by the prosecution provided trial
    testimony with conclusions either misstating empirical data or wholly
    unsupported by empirical data in greater than the majority of cases
    where DNA evidence exonerated someone whose conviction had been
    supported by forensic evidence.\1\
    ---------------------------------------------------------------------------
        \1\ Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science
    Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) (82 of 137
    DNA exoneration cases relied upon invalid forensic evidence).
    ---------------------------------------------------------------------------
        There is, of course, a great difference between the use of forensic
    evidence to identify an individual as having left evidence at a crime
    scene and its use to exclude an individual as the possible contributor.
    It is generally a relatively simple and undisputed matter to exclude
    someone as the contributor of forensic evidence. Most problems in
    forensic identification evidence occur when practitioners conclude that
    a particular person is the contributor of evidence found on the
    scene.\2\
    ---------------------------------------------------------------------------
        \2\ Compare David H. Kaye, David E. Bernstein & Jennifer L.
    Mnookin, The New Wigmore: Expert Evidence 450 (2004) [hereinafter
    ``Kaye, et al., The New Wigmore''] (``A suspect who is excluded rarely
    would be prosecuted. . . . Unless the government shows that the
    exclusion could be spurious of advances as to how a defendant who is
    not the source of the trace evidence could be guilty, the exclusion
    should be disparities.'' (footnote omitted)); National Research
    Council, The Evaluation of Forensic DNA Evidence 51 (1996) (``The use
    of DNA techniques to exclude a suspect as the source of DNA has not
    been the subject of controversy.'') with Kaye et al., The New Wigmore,
    supra 447 (For matches, ``ascertaining any association requires the
    assistance of technology to detect the characteristics. In addition,
    determining the extent to which the more esoteric trace evidence
    narrows the set of possible suspects requires specialized knowledge and
    study.'').
    ---------------------------------------------------------------------------
        The United States Supreme Court cautioned a generation ago that
    ``[e]xpert evidence can be both powerful and quite misleading because
    of the difficulty in evaluating it.'' \3\ The recognition of
    deficiencies with forensic evidence has only grown since then.\4\
    Nonetheless, the prevalence of forensic evidence in criminal cases has
    grown over time. In this era of increasing reliance on forensic
    evidence, defense lawyers, more than ever, need to have the ability to
    understand such evidence to effectively represent those accused and to
    ensure that every defendant is afforded due process of law. When it is
    the defense counsel who considers the affirmative use of forensic
    evidence--whether to provide reasons for the jury to doubt the
    prosecution's charges or even to fully exonerate the defendant--defense
    lawyers, consistent with their Sixth Amendment and ethical obligations,
    need independent access to scientific and forensic experts and evidence
    to prepare and present the defense. In the more frequent instances in
    which it is the prosecution that seeks to use forensic evidence to
    carry its burden to prove beyond a reasonable doubt that a criminal
    defendant committed a crime, defense counsel is constitutionally and
    ethically obligated to ensure that the evidence is sufficiently
    accurate and reliable to be presented to a jury and that, if it is so
    presented, that the jury understands the limits of the evidence.
    ---------------------------------------------------------------------------
        \3\ Daubert v. Merrell Dow Pharm., 509 U.S. 579, 595 (1993).
        \4\ See Melendez-Diaz v. Massachusetts, __ U.S. __, __, 129 S. Ct.
    2527, 2537 (2009) (``Serious deficiencies have been found in the
    forensic evidence used in criminal trials. . . . `[T]he legal community
    now concedes, with varying degrees of urgency, that our system produces
    erroneous convictions based on discredited forensics.' '' (quoting
    Pamela R. Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491
    (2006))).
    ---------------------------------------------------------------------------
        Contrary to media portrayals of forensic science in popular TV
    shows, forensic evidence presented in court is at times based on
    speculative research, subjective interpretations, and inadequate
    quality control procedures. Ensuring the scientific integrity of
    forensic evidence is essential to prevent wrongful convictions and to
    exonerate the innocent. In February 2009, the National Academies'
    National Research Council issued a report, Strengthening Forensic
    Science in the United States: A Path Forward (National Academies Press
    2009) (``NAS Report''), that set forth a roadmap for reform and renewed
    the promise of fairness in the criminal justice system.
        The NAS Report highlighted important deficiencies, and NACDL
    supports the recommendations intended to remedy those deficiencies. In
    addition, NACDL adopted the following Principles and Recommendations to
    produce accurate and reliable forensic evidence results and to increase
    the likelihood of fair and accurate verdicts in our courtrooms. The
    Principles and Recommendations discuss seven central areas of need: (1)
    a central, science-based Federal agency, (2) a culture of science, (3)
    a national code of ethics, (4) the prerequisite of research, (5)
    education, (6) transparency and discovery, and (7) defense resources,
    particularly for indigent defense services.
    I. Central, Science-Based Federal Agency
        Principle: The NAS Report's primary and central reform--that
    Congress should establish and appropriate funds for the establishment
    of a science-based Federal agency--is of the utmost importance. This
    agency's purpose would be to promote the development of forensic
    science into a field of multidisciplinary research and practice founded
    on the systematic creation, collection, and analysis of relevant data.
    As the NAS recognized, this agency cannot be part of the Department of
    Justice or any other existing Federal department or agency whose
    primary mission involves prosecution or law enforcement. This agency
    should be created and established as an immediate policy priority while
    there are ongoing efforts to fund and generate research. Validated and
    reliable forensic evidence is an important and necessary component of
    the criminal justice system, and the development of such evidence
    should be encouraged. The results of any forensic theory or technique
    whose validity, limitations, and measures of uncertainty have not been
    established should not be admitted into evidence to prove the guilt of
    an accused person. See Section IV (Prerequisite of Research).
    Therefore, a central priority of the agency should be research programs
    to determine the validity, limitations, and measures of uncertainty
    associated with the forensic disciplines, particularly relating to
    forensic evidence that purports to identify any specific individual as
    the contributor of crime scene evidence.

        RECOMMENDATION 1 (Staffing):

            As the NAS Report suggested, the Federal agency should have a
            full-time executive director, professional staff, and an
            advisory board composed of a broad range of individuals with
            interest and expertise in issues that relate to the forensic
            disciplines and the criminal justice system.

        RECOMMENDATION 2 (Scope of responsibilities):

            Congress should allocate funds to the Federal agency, which
            should serve as the authority by which funds are
            conscientiously dispensed with a national strategy in mind. As
            recognized by the NAS Report, the Federal agency should, inter
            alia, oversee all programming that relates to forensic science
            and forensic evidence in the United States, establish national
            reporting standards for each forensic discipline, and encourage
            research by national research universities and other
            independent research-based institutions, including providing
            scholarships, fellowships, and grants to promote interest in
            the forensic disciplines among graduate students and faculty in
            the basic sciences, statistics, and engineering.\5\
    ---------------------------------------------------------------------------
        \5\ The NAS Report details the broad scope of the agency's mandate.
    Such programming could include the development of programs to determine
    the validity and limitations of the forensic disciplines and to improve
    the understanding of them by members of the criminal justice system; a
    strategy to improve forensic science research and educational programs;
    the funding of academic, independent, and government research projects
    and educational programs, with emphasis on programs that address the
    credibility, validity, reliability, and understanding of forensic
    evidence; the establishment of best practices for forensic science
    practitioners and laboratories; the determination whether the
    government should financially support freestanding forensic science
    programs in colleges and universities or encourage conventional
    science, statistics, and engineering programs to include forensic
    tracks as part of their programs; and evaluation of the development and
    introduction of new technologies in forensic investigations, the use of
    established technologies on new or different types of evidence, a
    comparison of new technologies with older ones, and a consideration of
    the limits of new ones.

    ---------------------------------------------------------------------------
        RECOMMENDATION 3 (Board of accreditation and certification):

            To strengthen regulation of the forensic disciplines, the
            Federal scientific agency should establish a board on
            accreditation and certification with full authority to accredit
            and revoke the accreditation of all laboratories, to certify
            and discipline all forensic science practitioners, and to
            establish a program to audit all laboratories to ensure
            compliance with national standards.\6\ Oversight of
            accreditation and certification programs should be housed
            outside the forensic disciplines themselves and should be the
            sole responsibility of the Federal agency. Certification is a
            matter for the Federal agency and not for the courts. Forensic
            science practitioners who practice laboratory bench work should
            be certified. Conversely, because there is a difference between
            conducting bench examinations and evaluating the results of the
            examinations or evaluating the methodology underlying the
            examinations, those forensic science practitioners and other
            scientists and experts who have specialized knowledge and
            expertise and/or conduct research and/or teach in academic and
            private institutions but who do not perform routine bench work
            in a forensic facility do not need to be certified in the
            particular procedure to evaluate the empirical evidence
            concerning the validity, reliability, and accuracy of various
            examinations.\7\
    ---------------------------------------------------------------------------
        \6\ Fraud in case work and other intentional acts of misconduct--as
    defined by the Federal agency--are illustrative of grounds for
    revocation of accreditation or decertification.
        \7\ The existence of certification should neither create a
    presumption of admissibility of the forensic science practitioner's
    testimony nor obligate the court to admit the testimony. Similarly, the
    absence of certification should neither create a presumption of
    inadmissibility nor obligate the court to exclude the evidence.

    ---------------------------------------------------------------------------
        RECOMMENDATION 4 (Proficiency testing program):

            The Federal agency should institute a national, uniform
            proficiency testing program. Proficiency testing should mirror
            actual case work. Because proficiency testing is an integral
            part of the accreditation and certification process,
            proficiency testing should be mandatory for forensic science
            practitioners.\8\
    ---------------------------------------------------------------------------
        \8\ Efforts should be made to join with academic institutions and
    researchers to fund research for the development and implementation of
    ``blind'' proficiency testing that (1) mirrors actual case work, (2) is
    as difficult as true practitioner case work, (3) is well documented;
    (4) evolves with the learning of new developments that may affect
    proficiency, and (5) is, to the extent possible, not made known to the
    practitioner to be a test. Proficiency testing programs should provide
    a mechanism whereby failure to successfully complete a test is reported
    to the agency and made known to those legal professionals who rely on
    or who have relied upon the practitioner's work, and results in a
    corrective action plan for the forensic science practitioner.
    ---------------------------------------------------------------------------
    II. Culture of Science
        Principle: A culture of science that encourages independence,
    openness, objectivity, error management, and critical review should be
    promoted in forensic science practitioners and facilities. Many
    forensic science practitioners and facilities already exhibit this
    culture. However, as the NAS Report recognized in calling for
    segregation of forensic facilities from law enforcement and
    prosecutorial offices, a close working relationship with law
    enforcement has detrimentally influenced the mindset of other forensic
    laboratories and facilities and the personnel within them.\9\ There
    should be a national, fundamental commitment to a culture of science
    among all facilities and all practitioners.
    ---------------------------------------------------------------------------
        \9\ Many forensic facilities have a number of ways in which they
    consciously and unconsciously have replaced a culture of science with a
    law enforcement mentality. See National Research Council, Strengthening
    Forensic Science in the United States: A Path Forward 24 (National
    Academies Press 2009) [hereinafter ``Strengthening Forensic Science'']
    (``Congress should authorize and appropriate incentive funds . . . for
    the purpose of removing all public forensic laboratories and facilities
    from the administrative control of law enforcement agencies or
    prosecutors' offices.''); http://www.ascld.org/files/membershipinfo.pdf
    (defining membership of American Society of Crime Laboratory Directors
    as leadership of forensic facilities ``whose principal function is the
    examination of physical evidence for law enforcement agencies in
    criminal matters and who provide testimony with respect to such
    physical evidence to the criminal justice system.'' (emphasis added)).

    ---------------------------------------------------------------------------
        RECOMMENDATION 1 (Independence):

            Governmental forensic facilities and practitioners should be
            administered by independent agencies of federal, state,
            territorial, tribal, or local government. Law enforcement and
            prosecutorial agencies should have no controlling
            administrative, budgetary, or managerial relationships to
            forensic facilities and practitioners. Access of defense
            attorneys to governmental forensic facilities and forensic
            practitioners should not be limited by law, policy, or
            managerial attitude.

        RECOMMENDATION 2 (Openness):

            The exchange of research information, methods, and data is
            critical to the advancement of forensic science; therefore,
            forensic facilities should adopt policies that promote openness
            in operational, management, and scientific procedures. All
            scientific protocols, methodologies, and data should be
            available for examination and critique by academic and research
            scientists, legal scholars, and forensic science practitioners
            to promote knowledge, development, and education.

        RECOMMENDATION 3 (Objectivity):

            Forensic facilities and practitioners should ensure the
            segregation of case information extraneous to the examination
            and minimize the impact of unconscious bias on the
            interpretation of results.\10\
    ---------------------------------------------------------------------------
        \10\ Garrett & Neufeld, supra note 1, at 67-71 (discussing
    erroneous forensic odontology interpretations); Dan E. Krane, et al.,
    Sequential Unmasking: A Means of Minimizing Observer Effects in
    Forensic DNA Interpretation, 53 J. Forensic Sciences 1006 (2008)
    (calling for forensic science practitioners to analyze evidence without
    knowledge of known profiles); Robert B. Stacey, A Report on the
    Erroneous Fingerprint Individualization in the Madrid Train Bombing
    Case, 54 J. Forensic Identification 706 (2004) (discussing false
    fingerprint identification of United States lawyer suspected of
    overseas terrorist act in part because lawyer was known to worship at
    mosque); William C. Thompson, Painting the Target Around the Matching
    Profile: The Texas Sharpshooter Fallacy in Forensic DNA Interpretation,
    8 Law, Probability & Risk 257 (2009) (discussing post hoc interpretive
    shifting that can occur with forensic testing by practitioners seeking
    to fit crime scene evidence with known profile of suspect).

    ---------------------------------------------------------------------------
        RECOMMENDATION 4 (Error management):

            Forensic evidence conclusions should include the limitations of
            the opinion offered and the various error rates associated with
            the method or technique.\11\ Error rates encompass both
            methodology error and practitioner error: the chance that the
            scientific procedure may produce the wrong result and the
            chance that the practitioner may not have done the procedure
            correctly. As the NAS Report recognized, errors associated with
            the method and those associated with the practitioner are
            inextricably linked. If research to quantify the various error
            rates is still ongoing and a report is written and/or trial
            testimony is given regarding the results of a forensic
            examination, forensic science practitioners should acknowledge
            the unknown nature and degree of error in such written and
            testimonial reports of their findings.\12\
    ---------------------------------------------------------------------------
        \11\ See, e.g., Strengthening Forensic Science 142 (``Although
    there is limited information about the accuracy and reliability of
    friction ridge analyses, claims that these analyses have zero error
    rates are not scientifically plausible.''); id. 154 (``[T]he decision
    of the tool mark examiner remains a subjective decision based on
    unarticulated standards and no statistical foundation for estimation of
    error rates.''). Forensic opinions of individualization and identity
    should be replaced by opinions that include probabilistic match
    associations, as is done with DNA evidence, together with provision of
    the error rates involved in determining that various characteristics on
    specimens ``match.'' Simon A. Cole, Forensics without Uniqueness,
    Conclusions without Individualization: The New Epistemology of Forensic
    Identification, 8 Law, Probability & Risk 233 (2009); Michael J. Saks &
    Jonathan J. Koehler, The Coming Paradigm Shift in Forensic
    Identification Science, 309 Science 892 (2005).
        \12\ This recommendation is made with the realization that some of
    the recommendations contained in this report may take longer to
    implement than others, and that, if some courts nevertheless admit
    forensic evidence prior to completion of studies to determine the
    measures of uncertainty of the particular forensic techniques, forensic
    science practitioners should then acknowledge the unknown nature and
    degree of error in such written and testimonial reports of their
    findings. Cf. Section IV (Prerequisite of Research), Principle (``The
    results of any forensic theory or technique whose validity,
    limitations, and measures of uncertainty have not been established
    should not be admitted into evidence to prove the guilt of an accused
    person.'').

    ---------------------------------------------------------------------------
        RECOMMENDATION 5 (Critical review):

            Employment with a forensic facility should require rigorous,
            continual evaluations of professional competency and
            independent technical review of case work. Within the forensic
            science community, there should be critical assessment by the
            scientific and legal communities through widely read and well-
            respected professional journal publications, conferences, and
            training seminars.\13\
    ---------------------------------------------------------------------------
        \13\ Exchange programs, fellowships, and scholarships should be
    established to promote interaction and communications between the
    academic, research and forensic science practitioner communities.
    ---------------------------------------------------------------------------
    III. Code of Ethics
        Principle: All forensic science practitioners and supervisors
    should be required to adhere to a professional code of ethics that
    clearly articulates ethical obligations and contains a meaningful
    enforcement mechanism.\14\
    ---------------------------------------------------------------------------
        \14\ While a national code of ethics would provide needed
    uniformity, discipline-specific codes or state codes enforced through
    licensing boards may be sufficiently effective. National model codes
    may provide useful guidance in unifying practices and standards.

    ---------------------------------------------------------------------------
        RECOMMENDATION 1 (Continuing education):

            The code of ethics should include continuing educational
            requirements for all forensic science practitioners that
            includes specialized training, discovery obligations, and
            evidence-handling requirements.

        RECOMMENDATION 2 (Acknowledgement of subjectivity):

            The code of ethics should require the acknowledgement of
            subjectivity in opinions and conclusions that may be presented
            in court given a particular set of findings.

        RECOMMENDATION 3 (Disclosure obligations):

            The code of ethics should reflect an understanding of discovery
            obligations and the constitutional duty of the government and
            its agents to disclose to the defense potentially favorable
            information in criminal proceedings.

        RECOMMENDATION 4 (Enforcement):

            The code of ethics should have a clearly articulated process
            for making complaints, and a transparent enforcement mechanism
            with a range of meaningful penalties that include the
            disqualification from forensic practice as an available
            sanction for intentional fraud and other gross misconduct.
            Adverse ethical findings should be made public.
    IV. Prerequisite of Research
        Principle: Research programs pertaining to the accuracy,
    reliability, and validity of forensic theories and techniques, and
    their limitations and measures of uncertainty where calculable, should
    immediately be established, fully funded, and carried out. This
    research should be led and primarily conducted by credentialed and
    qualified scientists at national research institutions; forensic
    science practitioners--particularly those guided by a culture-of-
    science mindset and with histories of independence from law
    enforcement--should be active research participants and partners.\15\
    Not all forensic disciplines are equally grounded in validated
    science.\16\ Nor are all forensic processes within a particular
    discipline equally grounded in validated science.\17\ The results of
    any forensic theory or technique whose validity, limitations, and
    measures of uncertainty have not been established should not be
    admitted into evidence to prove the guilt of an accused person.\18\
    Prior admissibility or use of the results of a forensic discipline,
    technique, or theory is not conclusive proof of validity or
    reliability.\19\
    ---------------------------------------------------------------------------
        \15\ Strengthening Forensic Science 71 (``Although the FBI and NIJ
    have supported some research in the forensic science disciplines, the
    level of support has been well short of what is necessary for the
    forensic science community to establish strong links with a broad base
    of research universities and the national research community. Moreover,
    funding for academic research is limited and requires law enforcement
    collaboration, which can inhibit the pursuit of more fundamental
    scientific questions essential to establishing the foundation of
    forensic science.''); id. 189 (``Much more Federal funding is needed to
    support research in forensic science and forensic pathology in
    universities and in private laboratories committed to such work.'').
        \16\ Id. 6-7 (``The term `forensic science' encompasses a broad
    range of forensic disciplines, each with its own set of technologies
    and practices. In other words, there is wide variability across
    forensic science disciplines with regard to techniques, methodologies,
    reliability, types and numbers of potential errors, research, general
    acceptability, and published material. . . . Many of these differences
    are discussed in the body of this report.''); id. 127-82 (describing
    various forensic disciplines and the differences in their scientific
    underpinnings).
        \17\ For example, most uses of forensic evidence to exclude an
    individual as the possible contributor of evidence left on a crime
    scene are relatively straightforward applications of accepted
    procedures. See supra note 2.
        \18\ See generally In re Winship, 397 U.S. 358, 362 (1970)
    (referring to presumption of innocence as ``that bedrock `axiomatic and
    elementary' principle whose `enforcement lies at the foundation of the
    administration of our criminal law' '' (quoting Coffin v. United
    States, 156 U.S. 432, 453 (1895))).
        While the prosecution presents at trial the vast majority of
    forensic evidence, defense counsel sometimes use forensic evidence
    affirmatively in their representation of accused persons. Defense
    attorneys should seek to use validated science--and should seek to
    avoid using science that has been demonstrated to be invalid--in their
    representation. Ultimately, a defense counsel's use of forensic
    evidence in the case-in-chief is guided by all defendants'
    constitutional right to present evidence in their behalf and by all
    defense attorneys' obligations to zealously represent their clients and
    to provide constitutionally effective assistance of counsel. See
    generally Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (``Few
    rights are more fundamental than that of an accused to present
    witnesses in his own defense. . . . [W]here constitutional rights
    directly affecting the ascertainment of guilt are implicated, the
    hearsay rule may not be applied mechanistically to defeat the ends of
    justice.''); Washington v. Texas, 388 U.S. 14, 19 (1967) (``The right
    to offer the testimony of witnesses, and to compel their attendance, if
    necessary, is in plain terms the right to present a defense, the right
    to present the defendant's version of the facts as well as the
    prosecution's to the jury so it may decide where the truth lies.'');
    Patrick v. State, 750 S.W.2d 391, 391 (Ark. 1988) (``The legal question
    in this case is whether the results of a portable breath test, or what
    is sometimes called a roadside sobriety test, which are not admissible
    to prove a person is guilty of driving while intoxicated, are
    admissible when they would indicate a person is not guilty. In this
    case the answer is yes because the evidence is exculpatory, was crucial
    to the defense, and sufficiently reliable to warrant admission.'').
        \19\ See, e.g., United States v. Green, 405 F.Supp.2d 104, 109 (D.
    Mass. 2005) (``The more courts admit this type of tool mark evidence
    without requiring documentation, proficiency testing, or evidence of
    reliability, the more sloppy practices will endure; we should require
    more.''). Courts have historically exhibited extreme reluctance to deny
    the prosecution the use of forensic evidence at trial. See
    Strengthening Forensic Science 96 (citing Peter J. Neufeld, The (Near)
    Irrelevance of Daubert to Criminal Justice: And Some Suggestions for
    Reform, 95 American J. Public Health S107, S109 (2005), and Paul C.
    Giannelli, Wrongful Convictions and Forensic Science: The Need to
    Regulate Crime Labs, 86 N.C. L. Rev. 163 (2007)). The NAS Report, since
    its publication in February 2009, has become part of a change in the
    legal landscape in which the need for demonstration of the scientific
    validity and limitations of forensic theories and techniques can no
    longer be doubted, and therefore unvalidated forensic evidence should
    not be admitted against a defendant in court. Despite this proscription
    against admission by the prosecution of unvalidated forensic evidence,
    some courts may nonetheless improperly admit such evidence prior to
    completion of the necessary studies to determine their validity and
    limits. Such circumstances should not occur; however, if they do, at a
    minimum, jurors must be instructed about the lack of demonstrated
    validity, the limitations of the opinion offered, and the existence and
    degree of various error rates associated with the method or technique;
    and the defense must be permitted to present evidence consistent those
    instructions.

    ---------------------------------------------------------------------------
        RECOMMENDATION 1 (Determination of probability associations):

            Based upon the research into the uncertainties inherent in most
            forensic processes, match probability associations about the
            evidence should, whenever possible, generally replace
            conclusions such as ``match,'' ``uniquely associated with,''
            ``source attribution,'' ``individualization,'' ``conclusive,''
            ``positive,'' ``absolute,'' and other similar terminology; and
            if such terms are used, they should only be used when
            probabilistically defined elsewhere in the report.

        RECOMMENDATION 2 (Relationship between research studies and case
    work):

            Studies of the reliability, validity, and accuracy of forensic
            techniques or theories should mirror actual case work and
            samples. The research should distinguish between industry
            performance (achieved across practitioners and facilities) and
            individual performance (achieved by specific practitioners and
            specific facilities).

        RECOMMENDATION 3 (Critical review):

            All research concerning the validity of a forensic theory or
            technique should be the product of high-quality research using
            sound methodology and published in well-regarded scientific
            journals that are widely, publicly available.

        RECOMMENDATION 4 (Error rates):

            Research should be conducted to establish the various types of
            error rates associated with the analysis. See, supra Section II
            (Culture of Science), Recommendation 4 (Error management) and
            note 12. To explore these issues, research methods should
            follow those used in clinical laboratories to generate such
            error rates.

        RECOMMENDATION 5 (Automated techniques):

            Research conducted to develop automated techniques capable of
            enhancing forensic technologies should include consideration of
            subjective interpretations and assumptions embedded in the
            technique and any limitations associated with the automated
            technique. Notification of such limitations should be provided
            together with results.

        RECOMMENDATION 6 (Minimizing bias):

            The basic principles of human observer bias and sources of
            human error are sufficiently established that there are
            precautions that can and should be implemented now.\20\ As
            research into observer bias continues, additional findings
            should be taken into account in continual improvement of
            policies, protocols, and procedures.
    ---------------------------------------------------------------------------
        \20\ See, e.g., D. Michael Risinger, et al., The Daubert/Kumho
    Implications of Observer Effects in Forensic Science: Hidden Problems
    of Expectation and Suggestion, 90 Cal. L. Rev. 1 (2002).

    ---------------------------------------------------------------------------
        RECOMMENDATION 7 (Documentation):

            Documentation of all procedures and results of forensic
            examinations is necessary to permit an independent
            reconstruction of the examination to establish the reliability
            of the results. Research should be conducted to determine what
            constitutes sufficient documentation to permit an independent
            reconstruction of a forensic examination. Research should also
            be conducted into appropriate procedures for case-specific peer
            review by practitioners of each other's work and documentation
            of such, taking into account, inter alia, the extensive current
            literature on observer bias.
    V. Education
        Principle: The NAS Report accurately observed that legal
    professionals generally lack the scientific expertise necessary to
    comprehend and evaluate forensic evidence in an informed manner.
    Attorneys and judges need significant education and training in the
    fundamentals of science, statistics, and common forensic practices; and
    in the limitations of, and potential forms and scope of error
    associated with, those practices.
        RECOMMENDATION 1 (Law students):

            Law schools should offer courses in scientific principles and
            scientific evidence. As part of a law school curriculum,
            students should be encouraged to take courses in science and
            statistics. The development of J.D.-Ph.D. programs in basic
            sciences, statistics, and engineering should be encouraged
            through grants, fellowships, and other means.

        RECOMMENDATION 2 (Lawyers and judges):

            The Federal Government should appropriate funding for the
            training of criminal defense attorneys, prosecutors, and judges
            in science, general scientific principles, and the ethical and
            constitutional obligations related to the disclosure and
            presentation of forensic evidence. Given the different roles in
            the adversarial process between the prosecution and the
            defense,\21\ separate trainings for prosecutors and defense
            counsel should be the primary pedagogical model, with the
            possibility of additional joint training where common purposes
            are identified. The training of prosecutors should include
            their disclosure obligations and the limits of forensic
            evidence. The training of defense lawyers should be focused on
            lawyers for indigent defendants, who have historically had the
            least access to forensic resources and on those regions of the
            country that have historically not had the funds to provide
            high-quality training to lawyers. The Federal government should
            dedicate funds to public defender organizations, criminal
            defense bar associations, and other criminal defense
            organizations that currently have effective training programs
            and to any new or existing entities that demonstrate a
            commitment to training and present an effective training
            proposal for indigent representation.
    ---------------------------------------------------------------------------
        \21\ Compare Kyles v. Whitley, 514 U.S. 419 (1995), Giglio v.
    United States, 405 U.S. 150 (1972), Brady v. Maryland, 373 U.S. 83
    (1963), and Napue v. Illinois, 360 U.S. 264 (1959), with Holmes v.
    South Carolina, 547 U.S. 319 (2006), Wiggins v. Smith, 539 U.S. 510
    (2003), Crane v. Kentucky, 476 U.S. 683 (1986), Strickland v.
    Washington, 466 U.S. 668 (1984), Chambers v. Mississippi, 410 U.S. 284
    (1973), and Washington v. Texas, 388 U.S. 14 (1967). See also note 19,
    supra (citing cases on burden of proof, presumption of innocence, and
    right to compulsory process).

    ---------------------------------------------------------------------------
        RECOMMENDATION 3 (Educational resources):

            Funds should also be appropriated for the purpose of
            establishing through the Federal agency a public repository for
            transcripts of forensic science practitioners; pleadings and
            transcripts in cases involving challenges to forensic evidence;
            and journal articles and treatises involving forensic evidence,
            especially those journals or treatises that are out-of-print or
            in limited circulation. The overseeing scientific Federal
            agency should make available a public repository of such
            material.
    VI. Transparency and Disclosure
        Principle: The principle of transparency is fundamental to a fair
    and effective criminal justice system and is a hallmark of good
    science. As one scholar put it, ``Science and secrecy do not sit
    comfortably together.\22\ The ability of attorneys to evaluate,
    investigate, present, and confront forensic evidence at trial is
    dependent upon the complete and timely disclosure of information about
    the examination, the conclusions of the forensic science practitioner,
    and the facility where the examination was conducted. In every case
    involving forensic evidence, regardless of the current state of the
    science and/or advancements made, both the prosecution and the defense
    will require full access to the forensic evidence and underlying data
    related to a particular case.
    ---------------------------------------------------------------------------
        \22\ Sheila Jasanoff, Transparency in Public Science: Purposes,
    Reasons, Limits, 69 Law & Contemporary Problems 21 (2006).

    ---------------------------------------------------------------------------
        RECOMMENDATION 1 (Transparency of forensic facility operations):

            All operations of forensic facilities should be open to
            scrutiny; their training, administrative, and policy manuals
            should be publicly accessible.

        RECOMMENDATION 2 (Ethical requirement):

            Forensic facilities and practitioners should adopt and follow a
            code of ethics that emphasizes, among other things, the
            importance of full disclosure. See Section III (Code of
            Ethics), Recommendation 3 (Disclosure obligations).

        RECOMMENDATION 3 (Disclosure obligations):

            Forensic science practitioners and forensic facility leadership
            should be trained on the legal obligations of disclosure of
            Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514
            U.S. 419 (1995), and local discovery rules to ensure a full
            understanding of the constitutional duty of the government and
            its agents to disclose to the defense potentially favorable
            material and other discoverable information in criminal
            proceedings.

        RECOMMENDATION 4 (Access to researchers and litigants):

            Forensic research should be available to be scrutinized by
            scientists outside the forensic community. Research findings,
            underlying data, and courtroom testimony concerning such
            research and data should be archived in a publicly accessible
            database. See Section V (Education), Recommendation 3
            (Educational resources).

        RECOMMENDATION 5 (Minimum disclosure requirements):

            Uniform minimum disclosure requirements should be imposed in
            all jurisdictions to promote the effective assistance of
            counsel, due process, and fair trials for all criminal
            defendants.\23\ Because, as noted before, see, supra notes 19 &
            22, the prosecution and defense counsel have different
            responsibilities in our constitutional structure and because
            local discovery rules usually expand upon those differences by
            imposing broader disclosure obligations on the prosecution than
            on the defense, prosecution and defense disclosure obligations
            necessarily differ from each other.
    ---------------------------------------------------------------------------
        \23\ The following should be readily accessible to attorneys
    representing criminal defendants in cases involving scientific
    evidence: (1) all information pertaining to the analysis; (2)
    information pertaining to quality control within the forensic facility;
    (3) information pertaining to the forensic science practitioner; and
    (4) standard operating procedure manuals and validation studies.
    Reports should include: (1) the opinion that will be presented in
    court; (2) all assumptions being made in rendering the above opinion;
    (3) a clear characterization of any limitations and an associated
    statistic that describes the weight that should be attributed to the
    evidence; and (4) the underlying basis of the opinion including
    identification of any published or unpublished material relied on.
    Forensic facilities should provide up-front information regarding the
    results of examinations, all results of automatic database searches
    conducted as part of the examination (e.g., CODIS and AFIS),
    documentation of quality control problems in the facility or associated
    with a particular forensic science practitioner, and standard operating
    procedures and validation studies. While these disclosure requirements
    are broader than the current policies of most forensic facilities, they
    are not onerous and should not only be provided after litigation. In
    fact, some forensic facilities already disclose the case-specific
    information as a matter of course upon request, and/or provide
    protocols and other non-case-specific information publicly online.

    ---------------------------------------------------------------------------
        RECOMMENDATION 6 (Reports):

            Forensic reports should be complete, thorough, and accurate.
            Reports should be written so that members of the legal system
            are able to discern what method of comparison or technique was
            used. The report should clearly define the standards for the
            method or technique, all terms used in the report, and the
            results of the comparison.

        RECOMMENDATION 7 (Databases):

            Defense attorneys should have access to data in government-
            administered forensic databases upon a written statement that
            such access may lead to relevant evidence and is necessary for
            effective representation of a criminal defendant. Access should
            be provided in a manner consistent with the privacy rights of
            the individuals in the databases.
    VII. Defense Resources
        Principle: Forensic reform must be viewed within the framework of
    the fundamental constitutional protections established to ensure fair
    and accurate verdicts based on trustworthy evidence and to prevent
    wrongful convictions. While the prosecution has historically been the
    primary proponent of forensic evidence, the defense bar also uses
    forensic evidence. Defense counsel sometimes use forensic evidence at
    trial, and, as is well known, many of the exonerations of innocent
    persons have been based on defense counsel's use of forensic evidence.
    Additionally, even hampered by severe economic constraints, it is
    typically the defense bar that has spotlighted deficiencies in, and
    limitations of, the various forensic disciplines.\24\ Defense counsel
    should have the ability to consult with experts in the forensic
    disciplines and in related scientific fields to identify for the courts
    and juries the scientific limits of the evidence and to present the
    results of independent testing and the testimony of independent experts
    when appropriate. Forensic reform should therefore include providing
    the defense with resources to obtain the assistance of forensic and
    scientific experts for confidential consultation and testimony, and the
    use of forensic facilities for independent, confidential testing. In
    all jurisdictions, indigent defendants, like defendants with financial
    means, should have access to assistance from appropriate experts.
    ---------------------------------------------------------------------------
        \24\ See generally Jay D. Aronson, Genetic Witness (2007)
    (discussing how defense courtroom challenges to admission of forensic
    DNA evidence led to vast improvement in its development and
    presentation).

    ---------------------------------------------------------------------------
        RECOMMENDATION 1 (Scope):

            Criminal defendants should be provided expert assistance
            commensurate with the needs of the case. Assistance shall
            include consultation with experts, expert testimony, and
            testing at forensic facilities.

        RECOMMENDATION 2 (Indigent defense):

            The Federal Government, through the central Federal scientific
            agency, should provide increased resources to the institutional
            indigent defense bar to provide for greater access to, and
            assistance by, experts versed in the forensic disciplines and
            their scientific underpinnings. In those circumstances where
            some or all indigent representation is provided by public
            defender offices, this money should be provided directly to
            federal, state, territorial, tribal, and local public defender
            offices for those offices' independent determinations of how
            best to use funding for forensic services in the representation
            of their indigent defendants. In those circumstances where
            indigent representation is provided by non-institutional court-
            appointed attorneys and circumstances where the accused can
            retain counsel but cannot afford expert services, the central
            Federal scientific agency should provide money specially
            targeted for scientific and forensic assistance to the courts
            or agencies designated to administer funding to court-appointed
            counsel. All such funds for non-institutional court-appointed
            lawyers should be available to court-appointed counsel upon a
            written, ex parte statement that expert assistance is necessary
            to effectively represent the defendant.

        RECOMMENDATION 3 (Experts):

            Although individuals trained as forensic science practitioners
            are one category of expert who may possess relevant and
            specialized knowledge, there are many other types of experts to
            whom prosecutors and defense lawyers can and should turn for
            assistance in understanding forensic evidence. In addition to
            forensic science practitioners, lawyers frequently consult with
            and call as trial witnesses scientists employed by academic and
            private institutions who have expertise and training in
            scientific and forensic disciplines, scientific principles
            including validity testing and the evaluation of empirical
            data, and in other scientific disciplines that provide the
            underpinning for, and context of, forensic disciplines.
            Further, courts have also recognized that even scholars and
            academic researchers who do not have degrees in science but
            whose publications demonstrate an understanding of the
            underpinnings of particular forensic discipline can contribute
            to the full and proper evaluation of forensic evidence. The
            funding for expert assistance should necessarily support and
            encourage assistance both from forensic practitioners and from
            scientists and academicians whose expertise can relate to and
            inform the meaning of the forensic evidence.

        RECOMMENDATION 4 (Consultation):

            Government forensic laboratories and other facilities that
            contract with the government should be open and accessible to
            both prosecutors and defense lawyers.\25\ In that regard,
            forensic science practitioners and directors should be
            available to meet with defense counsel and experts retained by
            the defense to discuss and answer questions regarding the
            methodologies, tests, and findings in a particular case.
            Government forensic science practitioners should also, when
            practical, be available to consult with defense counsel about
            cases from the same or other jurisdictions in circumstances in
            which there is no legal conflict of interest if defense counsel
            elects to seek assistance from such experts. Best practices
            generally prescribe that defense counsel consult an expert who
            is entirely independent of law enforcement and the prosecution.
            There should, therefore, never be a requirement or expectation
            that defense counsel will rely upon government forensic science
            practitioners as experts instead of consulting with private,
            independent experts.
    ---------------------------------------------------------------------------
        \25\ The association between forensic facilities and practitioners
    and law enforcement must end, with a culture of science fully
    inculcated throughout the entire forensic science community.
    Recommendations 3 and 4 of this section are made with the realization
    that some of the recommendations contained in this report may take
    longer to implement than others, and that the existing structure is one
    in which many forensic facilities are in an administrative, budgetary,
    and/or managerial subordinate role relative to law enforcement and
    prosecutorial agencies. See supra note 10.

    ---------------------------------------------------------------------------
        RECOMMENDATION 5 (Confidential testing):

            Government forensic facilities should be available if there is
            no conflict of interest to conduct confidential testing and to
            provide confidential results to the defense at the request of
            defense counsel. Best practices generally prescribe that
            defense counsel use a forensic facility that is entirely
            independent of law enforcement and the prosecution. Therefore,
            there should never be a requirement or expectation that defense
            counsel will use government forensic facilities to conduct
            independent testing. The defense may employ whatever facility--
            public or private--that it deems appropriate in a particular
            case. Because forensic facilities offer different services and
            have different strengths and weaknesses, funding should be made
            available to the defense to seek forensic testing from more
            than one facility on the same piece(s) of evidence.

        On behalf of NACDL, I am grateful for the opportunity to submit
    this statement. Thank you for considering our views on this matter. We
    stand ready to assist the Committee and its staff in developing
    measures that would strengthen forensic evidence and its presentation
    in the courtroom.
                                     ______

      Prepared Statement of Norah Rudin, Ph.D. (Forensic Consultant) and
    Keith Inman, M.Crim (Assistant Professor, California State University,
                                   East Bay)
        In February, 2009 the National Research Council of the National
    Academies issued their report, Strengthening Forensic Science in the
    United State: a Path Forward. Although the report shocked much of the
    general public, for many associated with the judicial system, and even
    for some forensic scientists, its revelations are inescapable. Although
    some in the forensic community have been sounding the alarm bell for
    years, our profession, as a whole, has been chosen stagnation over
    progress, deliberate ignorance over enlightenment. Given the grave
    consequences of our work--deprivation of liberty or life on one hand,
    allowing violent offenders to remain at large on the other--aspiring to
    anything short of the highest scientific standards fails to serve the
    best interest of justice. In addition to the obvious impact of
    questionable forensic work on the safety and security of the populace,
    an indirect consequence to society at large manifests in an erosion of
    trust that the judicial system will function fairly and objectively.
        Over more than a century of practice, the efficacy of forensic
    science rarely has been questioned. As Judge Harry T. Edwards (co-
    chairman of NRC group) stated in previous comments to the U.S. Senate
    Committee on the Judiciary \1\
    ---------------------------------------------------------------------------
        \1\ Statement of The Honorable Harry T. Edwards Co-Chair, Committee
    on Identifying the Needs of the Forensic Science Community The Research
    Council of the National Academies before the U.S. Senate Committee on
    the Judiciary March 18, 2009.

            Rather, I simply assumed, as I suspect many of my judicial
            colleagues do, that forensic science disciplines typically are
            grounded in scientific methodology and that crime laboratories
            and forensic science practitioners generally are bound by solid
            practices that ensure that forensic evidence offered in court
            is valid and reliable. I was surprisingly mistaken in what I
            assumed. The truth is that the manner in which forensic
            evidence is presented on television--as invariably conclusive
    ---------------------------------------------------------------------------
            and final--does not correspond with reality.

    Judge Edwards further comments on the lack of universally accepted
    scientific practices, including:

            . . . The frequent absence of solid scientific research
            demonstrating the validity of forensic methods, quantifiable
            measures of the reliability and accuracy of forensic analyses,
            and quantifiable measures of uncertainty in the conclusions of
            forensic analyses; . . .

    These observations go to the heart of the NRC committee's
    disillusionment with forensic science, and must be addressed if the
    profession is to regain the professional capital it historically has
    enjoyed. We take these ideas one at a time.
        As so often happens, ``validation'' has become a buzzword fed to
    the court as part of an automatic admissibility package. First, it is
    necessary to appreciate the difference between attempting to confirm
    the validity of an existing method, and performing fundamental research
    to determine the capabilities and limitations of a method. The former
    assumes the validity of the method, then sets out to prove it, directly
    antithetical to the scientific method; the latter is what is required,
    especially in the historical disciplines comprising comparison
    evidence, such as fingerprints, bullet striations, and shoeprints. True
    validation forms the basis for a set of interpretation guidelines that
    support a conclusion incorporating, among other things, the limitations
    of the procedure (and the evidence) and the uncertainty associated with
    the result. Unfortunately, the intractable response of the forensic
    community has been simply to support current practice, by proposing
    ``validation'' of existing methods, rather than taking a step back and
    performing fundamental inquiries into the nature of physical evidence.
    Unfortunately, this is a Band-Aid approach guaranteed merely to obscure
    a deep fundamental problem within forensic science.
        Second, the idea of quantifying the uncertainty in various aspects
    of forensic analysis leads directly to a fundamental issue in the
    justice system, the inherent tension and conflict between science and
    the law. While the law must definitively resolve the specific issue at
    hand with, science can only make provisional conclusions, always
    subject to update based on new information, and always subject to at
    least some level of ambiguity. At its very core, science eschews the
    type of certainty required by law; rather, science seeks to measure
    uncertainty.\2\ However, because of its long and intimate relationship
    with the legal system, the applied science described by the adjective
    forensic has been subtly co-opted by the law; its practitioners have
    succumbed to the paradigm of the legal system, providing opinions of
    individualization and identification under the guise of fact, instead
    of insisting that science be their primary allegiance. Forensic science
    must seek its scientific roots if it has any hope of retaining, or
    perhaps, gaining, credibility going forward. Individualization,
    identification, source attribution, or any other inference of unique
    common origin is not only unnecessary, it is scientifically
    unsupportable.\3\ Further, such inferences of source must properly
    remain with the trier of fact; the forensic scientist must restrict
    herself to quantifying the uncertainty attached to the observation that
    two items appear to be indistinguishable by the tests performed.
    ---------------------------------------------------------------------------
        \2\ Ten myths of science: Myth #5 ; Science and its Methods Provide
    Absolute Proof http://www.bluffton.edu/bergerd/NSC_111/TenMyths.html.
        \3\ Cole, S., Forensics without uniqueness, conclusions without
    individualization: the new epistemology of forensic identification Law,
    Probability and Risk 2009;
    ---------------------------------------------------------------------------
        Another observation made by Judge Edwards is:

            the paucity of research programs on human observer bias and
            sources of human error in forensic examinations;

        Although the forensic community has made some progress in accepting
    observer bias as fundamental to the human condition, many retain the
    misguided notion that subconscious bias may be overcome by education,
    understanding, of simply brute force of will \4\,\5\. While
    further research into this issue, is clearly necessary, specifically
    with regard to the specific circumstances encountered in forensic
    science, no reason exists to delay the implementation of sequential
    unmasking protocols \6\ designed to minimize the opportunity for such
    bias to affect conclusions derived from forensic analyses.
    ---------------------------------------------------------------------------
        \4\ http://www.swgfast.org/Comments-Positions/
    SWGFAST_NAS_Position.pdf.
        \5\ Budowle, et. al., A Perspective on Errors, Bias, and
    Interpretation in the Forensic Sciences and Direction for Continuing
    Advancement, J. Forensic Sci., 54:798, 2009.
        \6\ Krane, D., et al., Sequential Unmasking, A Means of Minimizing
    Observer Effects in Forensic DNA Interpretation, J. Forensic Sci.,
    53:4, 2008.
    ---------------------------------------------------------------------------
        Another of Judge Edwards' points we would like to address is:

            the lack of autonomy of forensic laboratories (which are often
            subject to the administrative control of law enforcement
            agencies or prosecutors' offices;

        As evidenced by this quote, the problem of undue influence over
    forensic laboratories by law enforcement is oft-perceived to be simply
    administrative in nature. Consequently, the proposed solution is to
    remove the laboratory from the chain of command. This is the situation
    for all of the government laboratories cited as ``independent'' by
    Judge Edwards in the addendum to his comments. While these laboratories
    are separated administratively and financially from law enforcement,
    they do not function as truly independent laboratories; they still
    perform work only for prosecutorial agencies. In our experience,
    including specific knowledge gained from reviewing some of the
    aforementioned laboratories, administrative separation does nothing to
    alter the loyalty to, or perceived affiliation with, law enforcement.
    To shift that particular paradigm, a laboratory would need to accept
    work from both prosecution and defense. The criminalists would need to
    be challenged to act as truly independent scientists, actively seeking
    alternative explanations for the data, and providing true transparency
    into their work. The model for this is provided by a few (although not
    nearly all) private laboratories which perform fee-for-service work for
    any professional client. Although we do not suggest complete
    privatization as a solution to this issue, elements of it could be
    applied to the government laboratory system to foster greater
    neutrality and openness.
        One strong suggestion by the NAS committee is to mandate
    accreditation of laboratories that perform forensic work. The call for
    accreditation has been adopted as a chant by, not only the forensic
    community, but other stake holders, suggesting it as almost a systemic
    cure-all. We could not disagree more with the notion that accreditation
    is a universal panacea. While uniform regulation and oversight is
    useful to create an underlying infrastructure upon which quality
    casework can be performed, it is neither designed to, nor has the
    capacity to, guarantee the veracity of results and conclusions produced
    by forensic laboratories. Like ``validation,'' ``accreditation'' has
    been reduced to a buzzword that conveys a false sense of security to
    the courts and to the public. Yes, accreditation for all laboratories
    testing physical evidence should be required, but it is really only one
    piece in the middle of a complex jigsaw puzzle, as the following
    analysis will demonstrate.
        Long before evidence ever reaches the laboratory, it must be
    identified and collected. The best analysis can never compensate for
    the failure to collect relevant evidence or store it properly. In many
    jurisdictions, law enforcement personnel, rather than criminalists, are
    assigned to process crime scenes. They often receive minimal training
    and the workforce is subject to rotation and turnover. We must direct
    more attention to training the officers that perform this critical
    work. And we must realize that collecting evidence requires a much more
    sophisticated approach than just donning a pair of latex gloves and
    moistening a swab to collect a blood stain. Even at this early stage in
    the process, a hypothesis, or better yet competing hypotheses, must be
    articulated, and the individual tasked with collecting evidence must
    search for relevant evidence with intelligence. Blindly collecting what
    appears to be obvious physical evidence will almost certainly leave
    important clues at the scene.
        In the laboratory, the really important decisions bookend the
    actual analysis (and it is only the analytical procedures on which
    accreditation focuses). Prior to testing, the criminalist must decide
    which items of evidence should be analyzed, using which protocols; he
    must determine which screening tests should be performed before a piece
    of evidence is consumed using an analytical procedure. The most
    accurate and reliable test can be performed, but if it answers an
    irrelevant question, the results are useless. As an example, your
    doctor listens to your complaints, examines you, and orders five tests.
    The laboratory conducts them all correctly, in duplicate, gives results
    that include an error range, and also provides information about the
    range of normal values, in complete compliance with their SOP and QA
    guidelines (in other words, meeting all of the requirements of
    accreditation). But if the doctor has ordered the wrong tests, the
    results of those tests will at best be worthless, and at worst lead the
    doctor in the wrong direction, resulting in a diagnosis that is
    incorrect, and potentially harmful.
        The interpretation of results after the analysis comprises the
    other bookend. As we have discussed previously, interpretation of
    laboratory results must be supported by true scientific validation that
    determines the capabilities and limitation of the method. Assumptions
    must be recognized, and explicitly incorporated into the
    interpretation. Finally the written report must reflect the totality of
    the analyst's results, inferences, and conclusions, and it should be
    written in clear, informative language; testimony should hold no
    surprises.
        Further, it is crucial to understand that forensic science does not
    operate in a vacuum; rather it interfaces with the legal and judicial
    system at every level. Thus, rather like a dysfunctional family, the
    failures are systemic, supported at each step of the process by the
    larger entity. Not only do forensic practitioners bear the
    responsibility to ensure that the craft they practice is valid and
    reliable, the scientific community at large must embrace forensic
    science in order to hold the profession to the highest scientific
    standard. Historically, this has not been the case, as many of the
    forensic disciplines evolved under the auspices of law enforcement
    rather than academics. Attorneys must educate themselves to use
    forensic science responsibly, and judges must be aware of the
    capabilities and limitations for various forensic disciplines.
        To again quote Judge Edwards' comments to the Senate Judiciary
    Committee:

            The judicial system is encumbered by, among other things,
            judges and lawyers who generally lack the scientific expertise
            necessary to comprehend and evaluate forensic evidence in an
            informed manner, defense attorneys who often do not have the
            resources to challenge prosecutors' forensic experts, trial
            judges (sitting alone) who must decide evidentiary issues
            without the benefit of judicial colleagues and often with
            little time for extensive research and reflection, and very
            limited appellate review of trial court rulings admitting
            disputed forensic evidence.

        In short, fixing forensic science alone is insufficient when
    addressing the shortcomings of science practiced within the context of
    law. The legal side of the equation must be remedied as well.
        In some sense, the players who struggle the most with science are
    judges. Judges work in relative isolation, typically consider only
    information provided to them by the litigating attorneys, and are
    afforded few case-independent educational opportunities. Additionally,
    because judges are the ultimate authority figure in trial-level
    litigation, they are rarely questioned, certainly not from below, and
    all too rarely from above. Yet they, and they alone, are the
    gatekeepers of how and when forensic evidence interfaces with the
    criminal justice system. Educating judges about physical evidence must
    be a priority if we are to elevate the use of forensic evidence in the
    courts.
        While judges are not and should not attempt to become scientists,
    neither should attorneys. To avoid this temptation, both prosecution
    and defense must have equivalent access to qualified experts. The
    current situation is clearly lopsided, as the prosecution has free
    access to government laboratory scientists, while most defendants must
    beg for court-mandated funding to hire independent experts. As long as
    the U.S. maintains an adversarial legal system, the best opportunity
    for justice to be served is to ensure that attorneys on both sides have
    access to commensurate resources.
        Finally we address transparency, an element sadly lacking in many
    jurisdictions. We are constantly dismayed at the attitude that
    discovery is somehow a shell game, that defense must ask three times
    nicely, using the right words, to obtain certain pieces of information
    from the government crime laboratory, such as error logs or underlying
    data. A better model for discovery is the military model, detailed in
    the Uniform Code of Military Justice. Although a Court Martial proceeds
    in a similar fashion to a civilian criminal trial, with full advocacy
    from both sides, complete transparency in discovery is both required
    and uniformly executed. This streamlines the process and minimizes
    theatrics. The civilian criminal justice system would do well to
    emulate this model.
        To quote Judge Edwards a final time:

            As the Committee's report makes clear, what is needed is a
            massive overhaul of the forensic science system in the United
            States, both to improve the scientific research supporting the
            disciplines and to improve the practices of the forensic
            science community.

        The path forward for forensic science remains shrouded in
    uncertainty. We have addressed a few of the most pressing issues here
    and look forward to continuing to participate in elevating our
    profession. We leave you with this closing thought:
        Forensic science developed historically as an adjunct to the law
    enforcement effort, subject to the same point of view (bias) as law
    enforcement. In our parlance, forensic science has been used for
    verification, simply corroborating what is believed to be true without
    actually challenging it. However, science is capable of providing much
    greater value to the law, by serving as an independent check in the
    administration of justice. The paradigm must shift away from science
    used in blind support of law enforcement to science employed as one
    instrument, among many, with which to administer justice.
                                     ______

      Prepeard Statement of Dr. Keith B. Morris, Director of Forensic and
                Investigative Science, West Virginia University
        The Forensic & Investigative Science Program (FIS) at West Virginia
    University has been in existence for more than 10 years. During this
    time it has developed both its undergraduate and masters degree
    programs.
        The quality of forensic science programs needs to be evaluated
    based on a number of factors namely the quality of the students it
    produces, the quality and applicability of the research it produces,
    its involvement and support to the community and, in the case of WVU as
    a land-grant university, the state in which it is located. The
    administration of WVU believes that to be positive all programs need to
    have three features: faculty, facilities, and equipment. It is
    challenging to recruit suitable faculty in the field, but WVU is in a
    fortunate position to have a faculty cadre with both the academic and
    practical experience in forensic science. These experiences are used to
    develop students both at the graduate and undergraduate level. Three
    students have graduated with PhDs in Chemistry (with a focus in
    forensic science) over the past 5 years and currently there are 9
    students enrolled in this PhD program. In addition, six students have
    graduated with masters degrees, one of whom received the Emerging
    Forensic Scientist Award at the 2008 meeting of the American Academy of
    Forensic Sciences. Currently the program has 380 registered majors and
    pre-majors on the undergraduate level and 16 in the masters program.
    Facility wise the program has 18,000 sq. ft. of laboratory space
    dedicated solely for its use as well as a crime scene facility
    consisting of three houses and a vehicle processing laboratory. The
    program is searching for two additional tenure track positions to
    expand the current research faculty.
        The program has, as it has matured, received significant donations
    and support for its activities. Of specific note is the donation from
    Mr. Ming Hsieh of 3M Cogent. Part of this donation included a Cogent
    AFIS system. The FBI has made available 1.8 million fingerprint sets to
    the program for specific research projects. Mr. Hsieh has also endowed
    two distinguished professorships in the FIS program. As far as we are
    aware the FIS program is the only forensic program to have endowed
    professorships. This supports the concept of the National Academy of
    Sciences report in developing new strategies for research in forensic
    science. Faculty members in the program have had research funded by the
    Department of Defense, the National Institute of Justice, the FBI,
    NIST, and others. Research is focused on areas identified by the NAS
    report as weak points.
        Evaluating the recommendations of the NAS study, it is evident that
    the role that WVU has played, and will continue to play, in teaching
    and research will support the future of the forensic science enterprise
    in the USA. Students at the undergraduate level are well prepared. The
    FIS Program believes that strong Federal support for research
    specifically focused on forensic science is needed where a well-defined
    research agenda has been determined.
                                     ______

       Prepared Statement of Robin T. Bowen, Interim Director, Forensic
                  Science Initiative, West Virginia University
        The West Virginia University (WVU) Forensic Science Initiative
    (FSI) plays a critical role in the identification, development,
    coordination, and execution of forensic science resource and
    development projects that directly aid state and local forensic science
    agencies. For instance, FSI provide ASTM standards to crime
    laboratories throughout the United States. FSI has a long and developed
    record of demonstrated service in the forensic community. Since its
    inception in 2002, the FSI has provided research, testing and
    evaluation, training, and resources to the forensic science community.
    The FSI seeks to improve and professionalize forensic science through
    peer interactions and training in the sciences, technologies, and
    processes critical to the application of forensic science. Thousands of
    forensic professionals have been helped with their jobs, careers, and,
    most importantly--cases by utilizing projects offered by FSI. Of
    forensic professionals surveyed who have used FSI resources, 95% report
    that the content has been useful to them in their daily official
    duties.
        FSI projects maintain the mission of the National Institute of
    Justice Office of Science and Technology, specifically, ``to carry out
    programs that, through provision of equipment, training, and technical
    assistance, improve the safety and effectiveness of law enforcement
    technology and improve access to such technology by Federal, State, and
    local law enforcement agencies.'' According to the Census of Publicly
    Funded Forensic Crime Laboratories, training comprises less than 1% of
    criminal justice agency's total budget, thus showing a severe need for
    such training programs. Laboratories are facing increased workloads,
    backlogs, and ever changing technologies and methodologies despite the
    decrease in budgets. FSI projects address training needs of the
    forensic community. These needs are stated in the National Research
    Council report, Strengthening Forensic Science in the United States: A
    Path Forward (2009) as well as these studies funded by NIJ--Forensic
    Sciences: Review of Status and Needs (1999);\1\ Education and Training
    in Forensic Science: A Guide for Forensic Science Laboratories,
    Educational Institutions, and Students (2004),\2\ developed by TWEGD
    and a report prepared by ASCLD or NIJ, published in May 2004, which has
    become known as the 180-day Study Report: Status and Needs of United
    States Crime Laboratories: \3\
    ---------------------------------------------------------------------------
        \1\ National Institute of Justice. 1999. Forensic Sciences: Review
    of Status and Needs. Washington, D.C.: National Institute of Justice.
        \2\ National Institute of Justice. 2004. Education and Training in
    Forensic Science: A Guide for Forensic Science Laboratories,
    Educational Institutions, and Students. Washington, D.C.: National
    Institute of Justice.
        \3\ American Society of Crime Laboratory Directors. 2004. 180-day
    Study Report: Status and Needs of United States Crime Laboratories.
    Largo, FL: ASCLD.

            Prior to conducting analysis on evidence, forensic scientists
            require both basic scientific education and discipline-specific
            training. To be in compliance with widely-accepted
            accreditation standards, scientists in each of the disciplines
            must have, at a minimum, a baccalaureate degree in a natural
            science, forensic science, or a closely-related field. Each
            examiner must also have successfully completed a competency
            test (usually after a training period) prior to assuming
            independent casework.\4\
    ---------------------------------------------------------------------------
        \4\ Ibid., p. 12.

        Training and education are persistent needs in the forensic science
    profession. WVU's Forensic Science Initiative is a leader in training
    forensic professionals. To date, hundreds of classes have been held at
    WVU and around the nation in topics as diverse as fiber and textile
    analysis, crime scene investigation, court testimony, bloodstain
    pattern analysis, and shooting incident reconstructions. Thousands of
    forensic scientists have gained new skills or enhanced existing ones
    through FSI courses. In order to best serve state and local forensic
    science providers, these courses are offered at no cost to participants
    with lodging costs offset through the FSI. Since 2006, FSI has held
    multiple large-scale training events, each conducted over 6 days with
    roughly 30 separate classes offered in a mini-semester format.
    Thousands of forensic professionals have attended and no training of
    forensic professionals at this scale has been attempted by any other
    entity.
        While the WVU FSI has become synonymous with training forensic
    professionals, many forensic professionals cannot afford training, are
    not permitted to participate, or cannot take time away from casework to
    attend training sessions in person.
        To meet the training needs of those who cannot get away from the
    laboratory, FSI has developed 25 online courses in collaboration with
    the Extended Learning Department at WVU. These courses have won
    international awards for content and design. Courses include Ethics in
    Forensic Science, Forensic Photography, Hair Evaluation for DNA
    Analysis, The Science of Fingerprints, Integrated Ballistic
    Identification Systems (IBIS), and many more that directly address
    needs stated by the NAS report as well as the forensic science
    community. Thousands of professionals have taken these courses; several
    agencies have made some courses required as a part of their in-house
    training curriculum. These courses are provided at no cost to duly
    authorized law enforcement personnel, crime laboratory personnel,
    correctional officers, and crime scene staff with the administrative
    costs being borne by the FSI.
        The program's overall impact on the forensic science community is
    training practitioners to thoroughly process, investigate, and
    prosecute criminal cases, resulting in more efficient and effective
    practices that will ultimately lead to a safer and happier community.
    By any measure, the training has been a success, delivering quality
    content with reliable logistics.
        The FSI has involved numerous faculty members, departments, and
    schools (Arts and Sciences, Engineering, Business and Economics, and
    Health Sciences) within WVU in past forensic resource projects,
    research, testing and evaluation, and training. These projects have
    provided needed deliverables to the forensic science community while
    building award-winning infrastructure at WVU for future projects and a
    competitive ability for other grants. The FSI has also broken new
    ground by initiating the study of forensic laboratories from a business
    and economics perspective. The Forensic Science Initiative is an
    integral part of building the quality reputation of forensic sciences
    at WVU and across the world.
                                     ______

    Response to Written Questions Submitted by Hon. John D. Rockefeller IV
                         to Dr. Constantine A. Gatsonis
    Scale of the Issue
        Question 1. Some have raised criticisms of the National Academy of
    Sciences review of forensics claiming that the panel lacked forensic
    analysts, did not review all of the existing research, and did not
    consider the knowledge gained by decades of courtroom scrutiny. KDr.
    Gatsonis, as a committee member, how would you respond to each of these
    criticisms?
        Answer. The NAS Committee had broad representation from the
    forensics communities, including a current director of a state
    department of forensic sciences, two medical examiners, two professors
    in forensic science programs, and a former deputy director of the FBI
    forensics laboratory. As detailed in the report, the Committee heard
    from a very broad range of forensic experts and reviewed voluminous
    published materials.

        Question 1a. While the National Academy's report highlighted this
    issue, how long has this actually been a problem?
        Answer. The challenges faced by the forensic communities have been
    felt for decades. Recent advancements in science, such as DNA analysis,
    have highlighted some of the problems.

        Question 1b. What have been the impediments to getting these issues
    addressed?
        Answer. I am afraid there is no succinct answer to this question.
    The Committee's report highlights major challenges in the organization,
    governance, funding, and quality assurance and control of the forensic
    disciplines and units across jurisdictions. The report also highlights
    major challenges in the scientific underpinning of forensic disciplines
    and the scientific research and educational infrastructure.
    The Role of the Federal Government
        Question 2. Forensic science is practiced in local, state, and
    Federal jurisdictions. How would changes in Federal crime labs
    propagate to labs at the state and local levels?
        Answer. My personal opinion is that the Federal crime labs can help
    significantly in efforts to enhance research in the forensic sciences
    and to develop and implement standards.

        Question 2a. What should be the role of the Federal Government in
    addressing the needs of forensic science, and what should be left to
    state and local governments?
        Answer. The major conclusion of the Committee on this point is the
    need for a new independent Federal entity, the National Institute of
    Forensic Science (NIFS). The mission and goals of NIFS are described in
    the report. The intention is not to suggest a Federalization of the
    entire forensic sciences system. However, an entity like NIFS will be
    able to provide the necessary cohesion, overview, direction, and
    funding.
    The Need for Scientific Independence
        Question 3. The primary recommendation of the National Academy's
    report was the establishment of an independent agency to oversee and
    support forensic science. However, the current fiscal realities make
    the creation of a new Federal agency difficult. A failure of the
    current system has been the lack of involvement of the academic
    community in research and standard setting. How can we guarantee their
    participation without support from a Federal agency dedicated to
    forensic science?
        Answer. The academic community can make major and on-going
    contributions to the forensic disciplines, both in research and in
    education. In order for this to materialize, it is important to develop
    a coherent national approach to the challenges of the forensic
    disciplines and to provide the necessary direction and funding. The
    role of NIFS in this effort seems indispensable.
                                     ______

     Response to Written Question Submitted by Hon. Frank R. Lautenberg to
                          Dr. Constantine A. Gatsonis
        Question. The National Research Council has raised concerns with
    the science behind ballistic matching and other forms of analysis
    involving guns. How can we improve our ability to prevent and prosecute
    gun crime using forensic science?
        Answer. As detailed in the relevant section of Chapter 5 of the
    report, much research is needed to address the scientific challenges in
    firearm analysis. For example, we need to understand and potentially
    improve the reliability and repeatability of methods used in firearm
    analysis and to address fundamental questions about the possibility of
    identifying firearms uniquely. In order to be effective, this research
    should be integrated into a strategic vision for the scientific
    development of the forensic disciplines and, of course, should be
    supported with adequate funding.
                                     ______

        Response to Written Questions Submitted by Hon. John Boozman to
                          Dr. Constantine A. Gatsonis
        Question 1. Do you think that with additional research, including
    on error rates and validity, forensic science disciplines, such as
    fingerprint analysis, ballistics, and hair analysis, could be used with
    greater accuracy and reliability?
        Answer. The research described in this question will assess the
    potential for improvement in the techniques currently used in each of
    the forensic disciplines. As is typically the case in science, this
    research may also point to new approaches that go well beyond current
    capabilities.

        Question 2. Do you think that incorporating and improving upon
    existing processes within the forensic science community for
    certification, accreditation and quality control would be more
    effective than creating wholesale new standards for each forensic
    discipline?
        Answer. Any effort to develop programs for certification,
    accreditation, and quality control would naturally need to involve the
    forensic communities, which have a lot to contribute to such
    developments. It is likely that we will need to cut from new cloth to
    meet some of the challenges. Overall, it seems very important to have
    clarify about the goals and to establish a process that will not be
    hindered by institutional inertia and other potential impediments.

        Question 3. You mentioned that the major recommendation from the
    Academies report was the establishment and appropriation of funds for
    an independent Federal entity. What possible alternatives to Federal
    intervention were explored?
        Answer. The Committee documented pervasive fragmentation in
    forensic disciplines and practices across the country. This led us to
    believe that a coherent, integrated national effort is needed. The
    creation of a Federal entity for this purpose was the consensus of the
    Committee. It seems unlikely to me that without a Federal mandate and,
    importantly, funding, there will be much progress in this area.

        Question 4. What are your thoughts on creating a central repository
    of validated protocols that all forensic science providers can access?
    Do you think this proposal would be an effective and efficient way to
    address some of the concerns you all have raises?
        Answer. The creation and promotion of standards and best practices
    across the country would benefit substantially from central resources
    such as the one you describe. These resources would achieve their full
    potential if they are integrated in a national forensics effort.
                                     ______

    Response to Written Questions Submitted by Hon. John D. Rockefeller IV
                             to Geoffrey S. Mearns
    Scale of the Issue
        Question 1. Some have raised criticisms of the National Academy of
    Sciences review of forensics claiming that the panel lacked forensic
    analysts, did not review all of the existing research, and did not
    consider the knowledge gained by decades of courtroom scrutiny. Mr.
    Mearns, as a committee member, how would you respond to each of these
    criticisms?
        Answer. I do not think these criticisms have merit.
        The claim that the NAS committee lacked forensic science analysts
    is demonstrably unfounded. Of the 17 members of the committee, four
    have extensive experience as forensic science analysts: Mr. Pete M.
    Marone; Dr. Randall S. Murch; Dr. Robert Shaler; and Dr. Jay Siegel. As
    detailed in Appendix A of the NAS Report, each of these highly
    respected experts has extensive experience as a forensic analyst, and
    their experience covers a wide variety of forensic science disciplines.
    Two other members of the NAS committee, Dr. Marcella F. Fierro and Dr.
    Ross E. Zumwalt, have extensive experience as forensic science analysts
    in a specific discipline--as medical examiners.
        The claim that the NAS committee did not review the relevant
    research is also unavailing. I will not fully describe the scope and
    depth of the NAS committee's research, but I will highlight several
    important points in response to this criticism.

       At the first NAS committee meeting, we asked the
            representatives of each of the major forensic science
            organizations to provide us with a list of all research that
            these individuals believed was relevant to our report; members
            of the NAS committee and/or staff reviewed all of the research
            that was recommended by these representatives.

       During the process, we consistently asked the
            representatives of each scientific working group (SWG) to
            submit all relevant research to us; members of the NAS
            committee and/or staff reviewed all of the research that was
            recommended by the SWGs.

       Members of the NAS committee, based on their expertise and
            experience, identified and reviewed additional research.

       Members of the NAS committee and/or staff reviewed every
            article published in ``The Journal of Forensic Science'' in the
            preceding 10 years.

       Members of the NAS committee asked staff to conduct
            literature searches to identify and review any other research
            that was relevant to the NAS report.

        Moreover, this criticism ignores one critical element of the NAS
    process: before the NAS report was released, a draft was provided to a
    group of independent reviewers chosen for their diverse perspectives
    and technical expertise. One of the purposes of this pre-release,
    independent review is to ensure that the NAS committee had reviewed and
    considered all of the relevant research. The NAS committee responded
    fully to any such concerns before our report was released. Had we not
    done so, the NAS would not have authorized the publication of our
    report.
        Finally, the claim that the NAS committee did not consider
    knowledge gained about forensic science by decades of courtroom
    experience is equally without merit. I was selected to serve on the NAS
    committee because of my substantial trial experience as a Federal
    prosecutor. Mr. Marvin Schechter, who also served on the NAS committee,
    has extensive trial experience as a criminal defense lawyer in state
    and Federal courts. And Judge Harry Edwards, who was one of the co-
    chairs of the NAS committee, has served as a Federal appellate court
    judge for more than 30 years; he has decided hundreds of criminal
    appeals. As detailed in Chapter Three of the NAS report, this
    experience contributed to our collective judgment that the adversarial
    litigation process has not been able to solve the systemic problems
    that presently undermine the accuracy and reliability of many forensic
    science disciplines. In short, we did not ignore our courtroom
    experience; to the contrary, that experience informed our judgment that
    these systemic problems could only be solved through the implementation
    of the specific recommendations identified in our report.

        Question 2. While the National Academy's report highlighted this
    issue, how long has this actually been a problem?
        Answer. The problems discussed in the NAS report have existed for
    decades because, with the exception of forensic DNA analysis, most
    forensic science disciplines have not been grounded in genuine,
    rigorous scientific research. It has only been within the last two
    decades, however, that these problems have been brought to the
    attention of practitioners and scholars.

        Question 3. What have been the impediments to getting these issues
    addressed?
        Answer. The impediments to solving these problems are discussed at
    some length in the NAS report. In my judgment, the most substantial
    impediment is the lack of a ``culture of science'' in many forensic
    science disciplines. This deficiency has led to the absence of a
    coordinated strategy to develop the scientific research agendas needed
    to validate many forensic science disciplines and the failure to fund
    that vital research.
        I also believe that the law enforcement community has been too
    complacent about the need to address these issues. Prosecutors and
    other law enforcement officers apparently do not perceive the potential
    benefit of conducting this research--or they fear that the results of
    this research will undermine past convictions or require that they
    change how they present forensic science evidence at trial. This
    resistance and reluctance must be overcome.
    The Role of the Federal Government
        Question 4. Forensic science is practiced in local, state, and
    Federal jurisdictions. How would changes in Federal crime labs
    propagate to labs at the state and local levels?
        Answer. There are many ways in which changes in Federal crime labs
    could lead to improvements in state and local crime labs. For example,
    the Federal agencies could share research results with their state and
    local counterparts. Federal agencies could also develop and share best
    practices regarding how to conduct tests, to report results, and to
    testify in court about those tests and results. Similarly, Federal
    agencies could develop accepted standards for accrediting laboratories
    and certifying practitioners. In short, leadership at the Federal level
    is vital.

        Question 4a. What should be the role of the Federal Government in
    addressing the needs of forensic science, and what should be left to
    state and local governments?
        Answer. As discussed in the NAS report and briefly summarized
    above, the Federal Government must assume a leadership role in order to
    address the problems that presently plague many forensic science
    disciplines. Nevertheless, state and local governments have a very
    important role to play. Among other things, they can encourage their
    respective colleges and universities to develop interdisciplinary
    educational programs to train forensic scientists and legal
    practitioners--prosecutors, defense lawyers, and judges. State and
    local governments can also position these institutions to conduct the
    research agenda established at the national level. Finally, state and
    local governments can require their law enforcement agencies and
    officials to adopt national standards and best practices.
    The Need for Scientific Independence
        Question 5. The primary recommendation of the National Academy's
    report was the establishment of an independent agency to oversee and
    support forensic science. However, the current fiscal realities make
    the creation of a new Federal agency difficult. How can we meet this
    need for independent research and oversight within existing Federal
    agencies?
        Answer. I remain convinced that Congress should create a new,
    independent forensic science agency. I do not believe that any existing
    agency, including DOJ or NIST, is capable of implementing all of the
    recommendations needed to address all of the problems we identified in
    the NAS report.
        If Congress were to conclude, however, that it is impracticable to
    create a new, independent agency at this time, then Congress can
    achieve some progress. For instance, Congress can direct NSF and NIH to
    allocate more funding for forensic science research. Congress should
    also direct the National Academies to develop a research agenda that
    would be conducted with this additional funding.
        Finally, Congress could direct the DOJ to coordinate the creation
    of a national organization to develop mandatory standards for
    accrediting forensic science labs and certifying forensic science
    practitioners. In order to ensure that these standards were fully
    effective, Congress could pass legislation providing that any forensic
    science expert who intends to offer testimony in Federal court must be
    certified and be associated with an accredited lab before their
    testimony is deemed admissible.
                                     ______

     Response to Written Question Submitted by Hon. Frank R. Lautenberg to
                               Geoffrey S. Mearns
        Question. You and the other witnesses offered a number of ideas on
    improving the use of forensic science in our criminal justice system.
    Forensic science can also be used to improve homeland security,
    particularly when it comes to preventing attacks and identifying
    evidence after a disaster. How can the recommendations made in the
    hearing be tailored to meet the unique needs of homeland security?
        Answer. Good forensic science practices are of clear value from a
    homeland security perspective because such practices can assist in
    bringing criminals to justice and in dealing with the effects of
    natural and human-made mass disasters. Forensic science techniques
    enable the thorough investigations of crime scenes. Routine and
    trustworthy collection of digital evidence, and improved techniques and
    timeliness for its analysis, can be of great potential value in
    identifying terrorist activity. In short, a strong and reliable
    forensic science community is needed to maintain homeland security.
        To capitalize on this potential, however, the forensic science
    communities must be effectively coordinated with homeland security
    efforts, so that they can contribute when needed. To be successful,
    this coordination requires: (1) the establishment of good working
    relationships among Federal, state, and local jurisdictions; (2) the
    creation of strong security programs to protect data transmittals
    across jurisdictions; (3) the development of additional training for
    forensic scientists and crime scene investigators; and (4) the
    promulgation of contingency plans that will promote efficient team
    efforts on demand. Improvements in the forensic science community could
    greatly enhance the capabilities of homeland security.
        Therefore, Congress should provide funding to prepare forensic
    scientists and crime scene investigators for their potential roles in
    collecting, maintaining, and analyzing evidence from events that affect
    homeland security, so that maximum evidentiary value is preserved from
    these unusual circumstances and the safety of these personnel is
    guarded. This preparation should also include planning and
    preparedness, including exercises, for the interoperability of local
    forensic personnel with Federal counterterrorism organizations.
                                     ______

        Response to Written Question Submitted by Hon. John Boozman to
                               Geoffrey S. Mearns
        Question. In your testimony, you discussed the evolution of DNA
    analysis, and how it has become a reliable forensic method. Mr. Mearns,
    based on your work in this area, could you talk about the role of the
    DNA Advisory Board at the Department of Justice in successfully
    creating a national gold standard for DNA analysis?
        Answer. I do not have personal experience with the DNA Advisory
    Board (``the Board''). It is my understanding, though, that the Board
    has played a very constructive role in successfully establishing DNA
    testing and testimony as a standard to which other forensic science
    disciplines should aspire. For example, the Board has helped to develop
    quality assurance standards and appropriate proficiency testing
    methodologies.
        Notwithstanding this success, however, I do not think we should
    expect that the DOJ and the FBI can achieve this same level of success
    with respect to other forensic science disciplines, because our
    experience with DNA was different in one very important respect: the
    use of DNA testing and analysis in criminal investigations and
    prosecutions emerged from scientific research, but the vast majority of
    the other forensic science disciplines emerged from the law enforcement
    community. With respect to DNA, its origin enabled the DOJ and the FBI
    to create, on a blank canvas, the needed standards and protocols. I
    believe that, because of the tendency of all law enforcement officers,
    including those in the DOJ and the FBI, to rely too heavily on their
    past experiences and to cling to their preconceived notions of the
    various forensic science disciplines, we should not assume that the DOJ
    and the FBI can replicate their success with DNA analysis in the other
    forensic science disciplines, which emerged from--and remains embedded
    within--the law enforcement culture.
                                     ______

    Response to Written Questions Submitted by Hon. John D. Rockefeller IV
                             to Dr. Terry W. Fenger
    Scale of the issue
        Question 1. While the National Academy's report highlighted the
    depth and breadth of the issues in forensic science, how long has this
    actually been a problem? What have been the impediments to getting
    these issues addressed?
        Answer. The focus of my comments expands upon those presented in
    the U.S. Senate Commerce Committee hearing held on December 7, 2011. My
    comments were limited to the development and enhancement of existing
    forensic science programs in higher education. Overall there is limited
    Federal funding directed towards establishing high quality forensic
    science programs. As technologies employed in forensic investigations
    continue to develop, if certification of forensic scientists becomes
    mandatory, and if accreditation of all forensic laboratories becomes a
    requirement, the demand for highly qualified forensic scientists will
    increase exponentially. A new generation of forensic scientists will
    not only be required to have technical knowledge and skills to perform
    analysis of crime evidence, but next-generation forensic scientists
    will need to participate in research, both basic and applied, in the
    large number of disciplines that constitute forensic science. Crime
    laboratories cannot be burdened with educating and training newly-hired
    forensic scientists that enter laboratory systems. The responsibility
    must fall on academic programs to prepare students for the workforce,
    in order to minimize crime laboratory based training upon being hired.
    Academic forensic science programs should also serve as a resource for
    other stakeholders in the criminal justice system by providing
    continuing education to forensic scientists, judges, attorneys, members
    of law enforcement, medical examiners and certain members of the
    medical profession, e.g., forensic nurses. To ensure the quality of
    education of students and continuing education of members of the
    criminal justice system, accreditation of academic programs, both at
    the graduate and undergraduate levels, is essential. Prior to 2003
    accreditation of forensic science programs in academia was non-
    existent, although the need for establishing accreditation standards
    was well recognized. The impediments for establishing accreditation
    standards are multifold. Prior to popularity of forensics science among
    the TV viewing population and high profile criminal cases that
    highlighted the role of forensic scientists, forensic science was not
    embraced as an academic discipline by most colleges and universities.
    Therefore, awareness of forensic science and the realization of the
    need for highly qualified graduates in this discipline by the academic
    community has been a major impediment. Funding for the establishment of
    forensic science programs at the undergraduate and graduate levels has
    also been lacking. Some academic programs develop a few courses with
    forensic science underpinnings and link them to courses with little
    forensic science focus and offer them as a forensic science program or
    area of emphasis. Key to ensuring high quality education is
    accreditation of forensic science programs through the Forensic Science
    Education Programs Accreditation Commission (FEPAC).
        Academic programs in forensic science have focused on undergraduate
    and Masters level graduate education. Currently, there is a paucity of
    PhD granting programs in forensic science, which equates to a lack of
    PhD level faculty to staff undergraduate and graduate programs and
    conduct discipline-specific research. Traditionally, scientists from
    other disciplines, such as chemistry and biology have shifted their
    professional focus to include forensic science. The lack of PhD
    granting programs in forensic science has also hampered the development
    of research programs in academia. Although chemistry and biology based
    forensic research has developed well at some universities, comparative
    disciplines, such as tool mark examination and latent print
    examination, have not fared as well. The lack of PhD faculty in
    academia with substantial experience in the comparative forensic
    sciences has contributed to the inability of higher education to
    address the needs for forensic scientists in comparative disciplines.
    The Role of the Federal Government
        Question 2. Forensic science is practiced in local, state, and
    Federal jurisdictions. How would changes in Federal crime labs
    propagate to labs at the state and local levels? What should be the
    role of the Federal government in addressing the needs of forensic
    science, and what should be left to state and local governments?
        Answer. Again focusing only on higher education in forensic
    science, from my experiences funding is limited both at the state and
    national levels for the establishment and development of forensic
    science programs at undergraduate or graduate levels. I recommend that
    Federal agencies provide grant-based funding to accredited, academic
    programs or those seeking accreditation, in order to enhance research
    opportunities, to develop areas of forensic science which are not
    traditionally covered in academic programs and to provide funding for
    outreach training for stakeholders throughout the criminal justice
    system. Research grants in all aspects of forensic science,
    particularly in the comparative sciences, are much needed. Grants to
    support research sabbaticals are essential to promote interactions
    between researchers and working laboratories. A grant program that
    would encourage forensic practitioners working in various forensic
    science disciplines to participate in research projects in academia
    would further partnerships between crime laboratories and laboratories
    within academia. Grant funding of post-doctoral research fellowships is
    also needed once doctoral programs in forensic science become a
    reality.
    The Need for Scientific Independence
        Question 3. Research, standards, and regulations are important, but
    it is the people working in crime labs who put these practices to use.
    How can we facilitate dialog between researchers and practitioners for
    the best practical outcome?
        Answer. The NAS Report emphasizes the need for all stakeholders in
    the criminal justice system to work cooperatively for the advancement
    of forensic science, the judiciary and legal systems and academics.
    Although opinions may differ, this writer suggests that there is only a
    minimal representation of academicians on national committees that
    develop policies governing forensic science at state and national
    levels.
        Traditionally crime, laboratories fall under the control of law
    enforcement which does not routinely interact with academic program.
    FEPAC accreditation standards, however, promote these interactions and
    make it a requirement for the development of strong ties between
    working crime laboratories and accredited forensic science programs.
    The formation of a Scientific Working Group of Forensic Science
    Educators (SWGFSE) to develop a national plan for developing and
    maintaining quality, accredited forensic science programs in
    conjunction with forensic laboratories would be one suggestion. A
    funding mechanism needs to be established to sustained SWGFSE as a
    permanent working group. SWGFSE could help develop academic curriculum
    that will best position graduates to pass a national certification
    examination if national certification becomes a reality.
                                     ______

        Response to Written Questions Submitted by Hon. John Boozman to
                              Dr. Terry W. Fenger
        Question 1. You discuss the need for doctoral programs in forensic
    science. What topics would be covered that may ordinarily not be
    covered in other doctoral programs that overlap with forensic science?
    What other fields closely overlap with forensic science? For example,
    would forensic psychiatry be covered in a program in psychiatry?
        Answer. Interest in forensic science as a career has grown
    exponentially for various reasons. Some observers suggest that the CSI
    effect plays a major role in stimulating interests of student in
    forensic science. Young people are influenced by the myriad of
    television shows that emphasize the importance of forensic science in
    solving crime. The crime laboratory is presented as a high tech,
    dynamic environment which allows criminal cases to be solved in a short
    time span. As the plot unfolds during these programs, the same
    individuals that investigate the crime scenes are also the ones that
    analyze the evidence in the forensic laboratory, which conveys the
    impression that lab analysts also have the opportunity to chase down
    the bad guy. Some students are attracted to forensic science because it
    allows them to use scientific principles to solve real life problems
    and to have a direct impact on society. The quality and reputation of
    the accredited, forensic science program at MU is also a primary factor
    in attracting students. Because of these and other reasons we have many
    more students interested in our program than we can accept. Marshall's
    two year Master's degree accepts a maximum of 20 students per year.
    This upper limit is determined by the limited number of laboratories
    available to instruct students in several forensic disciplines,
    including chemistry and microscopy. Another factor that limits class
    size at MU is the small number of full-time forensic science faculty
    that are dedicated to the program. Relative to the Marshall Forensic
    Science Program approximately 100 students apply to the program each
    year for the 20 openings. Interest in entering the program is greater
    than the actual applicant numbers. Students with undergraduate degrees
    in criminal justice usually do not have the prerequisite science
    courses required for admission into the MUFS program and therefore they
    do not qualify despite being interested in the field.
        The total number of applicants has declined slightly since the
    inception of the MU Forensic Science Program in 1995. This decline
    reflects the development of forensic science offerings at a large
    number of universities both at the undergraduate and graduate levels.
    Therefore there is greater competition for well-qualified students.

        Question 2. Dr. Fenger, you and your colleagues work at the
    Marshall University Forensic Science Center is impressive, especially
    since you have built it into a world class facility. Could you give me
    a rough estimate how student interest in your program has grown? Is
    this an area where students can easily find jobs or is there some
    skepticism of forensic science as a career? If a college or university
    wanted to start a program in forensic science, what is the greatest
    `barrier to entry'? What role did Federal funding play in creating your
    facility?
        Answer. Although I can only speak for the MUFS program with any
    authority, our graduates readily find positions in crime laboratories
    or as investigative agents in Federal and state agencies. The MU
    Forensic Science Program has a history of producing quality graduates
    and we receive inquires and job notifications from laboratories seeking
    our graduates. It was noted in the NAS Report, as well as other
    sources, that there will be a paucity of qualified forensic scientists
    in the future as a result of retirement of existing personnel. If
    funding to support state and local crime laboratories is available for
    laboratory expansion, it is anticipated that the need for additional
    laboratory personnel will also increase.

        Question 3. With regards to research, the field of forensic science
    is broad, ranging from psychiatry to entomology to applied physics
    (ballistics) to computer forensics to forensic geology. As we become
    more technologically advanced, this scope will continue to increase.
    Any thoughts how your Center is best equipped to handle this uncertain
    future?
        Answer. Obstacles for establishing forensic science programs often
    reflect university funding and the level of university support for
    development of a forensic science curriculum. Some universities have
    added courses to an already existing curriculum (forensic chemistry
    course(s) added to an existing chemistry track) and market it as a
    forensic science offering. Instructors in these courses may have little
    to no forensic science background. Other universities have developed
    stand-alone forensic science programs at the undergraduate and graduate
    levels. The costs and time to develop the latter programs is great. A
    primary barrier to the development of any program in academics is stiff
    competition between all academic programs at a university for limited
    state funding. Against this backdrop a new forensic science program
    requires the full support of the university administration who can
    ensure that a quality program develops. The university's goal should be
    full accreditation of the program through the Forensic Science
    Education Programs Accreditation Commission (FEPAC). (http://
    www.aafs.org/fepac) Accreditation helps establish uniformity and
    consistency among academic program nationally.

        Question 4. What are your thoughts on creating a central repository
    of validated protocols that all forensic science providers can access?
    Do you think this proposal would be an effective and efficient way to
    address some of the concerns your raise?
        Answer. Federal funding of MU Forensic Science Center has allowed
    the Center to offer services to state and local crime laboratories.
    Federal funding specifically supporting our academic programs has not
    been available. Federal funds were used to develop the accredited DNA
    testing laboratories at MUFSC which conducts DNA testing on West
    Virginia's convicted offenders, the resulting DNA profiles being
    included in the WV Combined DNA Index System (WV CODIS). The MUFSC DNA
    laboratories also performs DNA testing on evidence from criminal cases
    in support of specific crime laboratories outside of West Virginia. In
    addition, Federal grant funding has enable MUFSC to develop DNA
    analysis training laboratories again targeted to training professionals
    from state and local crime laboratories. Training laboratories, when
    not being used to aid state and local stakeholders, are utilized to
    train and educate students in the MU academic program. State-of-the-art
    equipment and facilities developed using Federal funds is one of the
    primary factors that allows our students to receive a quality education
    in an accredited environment. A research based internship is required
    to satisfy requirements for the program and the program's accreditation
    requirements. The crime laboratories that host MUFSP summer interns
    often receive Federal funding for capacity building and developing
    laboratory infrastructures. Thus, Federal grants that support crime
    laboratories indirectly benefit the education and training of forensic
    science students through summer internships.
                                     ______

                                   Appendices
    Maps
            President's DNA Initiative (PDI) and Advanced DNA Technologies
            Training in Support of State and Local Crime Laboratories

            Forensic Y-STR Analysis Training

            Forensic Relationship DNA Analysis Training

            Sexual Assault Nurse Examiner Training

            FBI Crime Scene Training

            Technical Assistance Program (TAP)

            Forensic Relationship/Paternity Cases
    Commendation/Citation
            Metropolitan Police Department of the District of Columbia

            International Association for Identification
    Publication
            Marshall University Forensic Science Center: Excellence in
            Forensic Science
                                     ______

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

                         Government of the District of Columbia
                                                     September 21, 2010
    Dr. Terry Fenger,
    Marshall University,
    Forensic Science Center,
    Huntington, WV.

    Dear Dr. Fenger:

        On behalf ofthe Metropolitan Police Department (MPD) of the
    District of Columbia, we would like to extend our gratitude and thanks
    to the Marshall University Forensic Science Center. Their efforts in
    the development and implementation of a DNA training program
    specifically designed for the MPD Crime Laboratory is most appreciated.
        I would like to give special recognition to Mr. Jason Chute, Mr.
    Justin Godby, and Mr. Joshua Stewart for their time and dedication
    spent to personalize the training for our MPD analysts. Their positive
    attitudes and unselfish transfer of knowledge will have a lasting
    effect on the development of the careers of the MPD analysts as
    forensic scientists in the laboratory, and in judicial proceedings.
        It is anticipated that the efforts made in this training endeavor
    will significantly contribute to successful outcomes in criminal
    investigations. We look forward to a long and lasting partnership with
    Marshall University and the Forensic Science Center.
                Sincerely,
                                               Cathy L. Lanier,
                                                       Chief of Police.
                                            Metropolitan Police Department.
                                     ______

                   International Association for Identification
                                                        August 21, 2009
    Robert J. Garrett,
    President,
    Metuchen, NJ.
                             Presidential Citation
        The Twins Study, sponsored by the International Association for
    Identification, was a research effort initiated to find scientific
    support for the basis of biological uniqueness as regards the
    arrangement and occurrence of friction ridge features on the palmar
    surface of the human hand. It was important to establish a database
    which would allow researchers to examine the level of similarity which
    may exist between the friction ridge characteristics of people who are
    genetically identical. This effort required the recording of friction
    ridge detail and the analysis of DNA samples collected from study
    participants to verity monozygotic or familial origins. The DNA results
    represented crucial information needed to support all future research
    in this area.
        The Marshall University Forensic Science Center is hereby commended
    and extended the gratitude of the International Association for
    Identification for their significant contribution to this research
    project. Of particular note were the efforts of Dr. Terry Fenger,
    Director of the Forensic Science Center and Mr. Jason Chute, DNA
    Technical Leader.
        It is my great privilege. as President of the International
    Association for Identification, to offer this salutation in recognition
    oft he center's support and cooperation in furthering scientific
    research in friction ridge identification.

                                             Robert J. Garrett,
                                                             President.
                                     ______

                    Marshall University Forensic Science Center
                                               Huntington, WV, May 2011
                         Excellence in Forensic Science

      Helping Our Nation's Crime Labs to Solve Cases and Educating Future
                              Forensic Scientists

    Vision
        Marshall University Forensic Science Center strives to be a model
    for developing both academic and applied programs at Marshall
    University and throughout the nation. The faculty and staff envision
    taking lead roles in initiating scientific c research, in advancing
    knowledge in forensic science, and in serving as stakeholders in the
    economic development of our region.
    Mission
        The Center's mission is to provide quality forensic science
    education, training for forensic science practitioners, advanced
    scientific analysis and innovative economic opportunity for the
    promotion of truth and justice in our community, state, and nation.
    Academic Program
        The two-year, FEPAC-accredited Master's Program in Forensic Science
    produces students available for internships and graduates working in
    state, local and Federal laboratories across the nation.

       The program offers emphases in DNA analysis, forensic
            chemistry, crime scene investigation and computer forensics.

       It is one of ten accredited forensic science graduate
            programs in the country.

       In 2009 it ranked number one in the nation for its students'
            overall scores on the Forensic Science Aptitude Test offered by
            the American Board of Criminalistics.
    DNA Laboratories
       NA testing on criminal cases submitted by state and local
            crime labs is performed at MUFSC. The DNA laboratories are
            nationally accredited by FQS-I as an ISO 17025 conformant
            laboratory for forensic testing and DNA databasing. They are
            also accredited by AABB for parentage testing.

       The center is the CODIS DNA testing laboratory for the State
            of West Virginia and is under jurisdiction of the West Virginia
            State Police. CODIS (Combined DNA Index System) is the
            nationwide searchable database, coordinated by the FBI, that
            contains DNA profiles of convicted felons and case evidence.
    Training Services
        More than 1600 working forensic science professionals from 48
    states haveattended training sessions at MUFSC's nationally renown
    facilities.

       Advanced DNA Training is provided to state and local
            forensic scientists under the President's DNA Initiative and
            Forensic Science Training, Development and Delivery Program.
            Trained more than: 521

       Y-STR Training is provided to state and local forensic
            scientists under the Forensic Science Training, Development and
            Delivery Program. Trained more than: 255

       Forensic Paternity/Relationship Testing is our newest
            training program. Trained to date: 134

       Sexual Assault Nurse Examiners (SANE) Training is hosted for
            nurses and supports community outreach to victims. Trained more
            than: 368

       Specialized Training by the FBI for law enforcement and
            public crimelaboratory personnel is hosted by MUFSC at its
            crime scene house. Trainedmore than: 322

       The Marshall Information Security and Digital Evidence
            Program hosts seminars for law enforcement in digital evidence
            collection and analysis.
    Research
       Forensic Science Graduate Program students perform research
            in the areas of DNA analysis, drugs, forensic chemistry,
            fingerprint analysis and digital forensics that assists
            forensic laboratories across the country.

       Bacterial source tracking uses new DNA technologies to
            rapidly identify sources of bacterial contamination in water.

       Individualization of smokeless powders is being conducted to
            assist Federal agencies in individualizing identification to
            establish sources and distribution networks.

       Individualization of gasoline residues and kerosene and
            medium petroleum distillates studies will develop a searchable
            database for those residues in fire debris.

       The Pollen Project will characterize pollen from plants in
            West Virginia for forensic investigations.
    Projects
       DNA testing on criminal forensic cases is performed at
            MUFSC. The center provides DNA testing on forensic casework,
            processing and testing evidence from rape kits, paternity/
            relationship testing, high-volume property crimes, cold cases
            and convicted offender backlogs for state and local crime
            laboratories.

       The MUFSC serves as a national resource for state and local
            forensic laboratories in need of assistance.

       The National Institute of Justice Technical Assistance
            Program provides selected forensic laboratories assistance with
            validation studies performed by trained graduate students on
            high-tech equipment.

       The MUFSC has conducted evaluations to determine DNA testing
            methods forbiological medical implant samples. Evaluations are
            being conducted on procedures to extract and analyze DNA in
            processed tissues.

       Partner in the Forensic Technology Center of Excellence for
            serving as the host site of the NIJ Expert Systems Testbed
            (NEST) Project, established to evaluate commercially available
            expert systems designed to assist in the review of DNA
            profiles. Demonstrations have been provided to state and local
            forensic DNA crime laboratory personnel. Participants in the
            NEST Project to date: more than 96
    Digital Forensics
       Cybercrime investigations are conducted within the facility
            by a West Virginia State Police Digital Forensic Unit in
            conjunction with MUFSC. Cases include child exploitation,
            homicides, prescription fraud and illegal drug operations.

       MUFSC is a founding member of the Appalachian Institute of
            DigitalEvidence, which provides educational conferences to
            prosecutors, judges and law enforcement, conducts research and
            provides public awareness.
    Economic Development
       Parentage Testing Services provides relationship/paternity
            testing nationally and for immigration cases.

       DNA Preservation and Testing Services provides sample
            preservation and profile services for funeral homes.

       Bacterial Source Tracking, using DNA technologies, provides
            services to state and Federal agencies.