[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
__________
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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
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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.
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\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).
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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.
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\4\ Ibid., p. 16.
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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.
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\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.
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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.
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\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.
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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.
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\13\ Federal Rules of Civil Procedure, Rule 26, 2(b), i-iii.
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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.
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\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.
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______
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.
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\1\ http://www.nap.edu/catalog.php?record_id=12589.
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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:
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\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
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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.
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\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
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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.
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\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,
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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
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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
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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.
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______
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.'').
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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))).
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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.
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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\
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\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.
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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\
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\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\
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\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.
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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.
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\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).
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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.
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\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).
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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.
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\22\ Sheila Jasanoff, Transparency in Public Science: Purposes,
Reasons, Limits, 69 Law & Contemporary Problems 21 (2006).
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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.
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\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.
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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.
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\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).
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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.
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\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.
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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\
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\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.
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\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;
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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.
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\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.
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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.