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



                                                        S. Hrg. 112-673

                   TURNING THE INVESTIGATION ON THE 
                          SCIENCE OF FORENSICS

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

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 7, 2011

                               __________

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










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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

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















                            C O N T E N T S

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

                               Witnesses

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

                                Appendix

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

 
         TURNING THE INVESTIGATION ON THE SCIENCE OF FORENSICS

                              ----------                              


                      WEDNESDAY, DECEMBER 7, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

          STATEMENT OF JOHN GRISHAM, MEMBER, BOARD OF

        DIRECTORS, INNOCENCE PROJECT; CHAIRMAN, BOARD OF

            DIRECTORS, MISSISSIPPI INNOCENCE PROJECT

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

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

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

        STATEMENT OF CONSTANTINE GATSONIS, HENRY LEDYARD

            GODDARD UNIVERSITY PROFESSOR AND CHAIR,

         DEPARTMENT OF BIOSTATISTICS, PROGRAM IN PUBLIC

      HEALTH, BROWN UNIVERSITY AND CO-CHAIR, COMMITTEE ON

         IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE

             COMMUNITY, NATIONAL RESEARCH COUNCIL,

                     THE NATIONAL ACADEMIES

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

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

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

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

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

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

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

    Recommendation #3 addresses research needs in the forensic 
        sciences.

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

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

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

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

  (d)  Automated techniques capable of enhancing forensic technologies.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    To improve medicolegal death investigation:

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

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

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

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

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

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

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

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

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

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

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

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

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

      STATEMENT OF GEOFFREY S. MEARNS, PROVOST AND SENIOR

         VICE PRESIDENT FOR ACADEMIC AFFAIRS, CLEVELAND

           STATE UNIVERSITY AND MEMBER, COMMITTEE ON

         IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE

             COMMUNITY, NATIONAL RESEARCH COUNCIL,

                     THE NATIONAL ACADEMIES

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

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

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

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

          MARSHALL UNIVERSITY FORENSIC SCIENCE CENTER

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

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

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

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

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

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

              Prepared Statement of the Innocence Project
    Thank you Chairman Rockefeller, Ranking Member Hutchison, and 
members of the Committee, for holding today's hearing, ``Turning the 
Investigation on the Science of Forensics.'' This is a critical topic--
our research into the causes of wrongful conviction reveals that the 
reliance on un-validated and/or improper forensics was the second-
greatest contributing factor to those wrongful convictions--and we are 
grateful that the Committee is turning its attention to the National 
Academy of Sciences (NAS) report on forensics and to the complex issue 
of reform. In particular, we are pleased that the Committee with 
jurisdiction over science is looking into this issue given the 
scientific shortcomings identified by the NAS.
    The Innocence Project, affiliated with the Cardozo School of Law, 
was founded by co-directors Peter J. Neufeld and Barry C. Scheck in 
1992. The project is a national litigation and public policy 
organization dedicated to exonerating wrongfully convicted people 
through DNA testing and reforming the criminal justice system to 
prevent future miscarriages of justice. Without the development of DNA 
testing, there would be no Innocence Project; 281 factually innocent 
Americans would remain behind bars, and 17 of those 281 could have been 
executed.
    Given what those DNA exonerations have taught us about the 
shortcomings of forensic science, the Innocence Project is extremely 
thankful to Congress for authorizing and appropriating the funds 
responsible for the National Academies of Science Committee to 
undertake its two year study of the state of the nation's forensic 
science system. By convening some of the very best minds in the nation 
to focus on the needs and shortcomings of forensic practice and how to 
remedy them, the nation has been provided with both an alarm regarding 
the serious shortcomings that exist regarding forensic evidence, and a 
roadmap to addressing the major improvements in the forensic system 
necessary to ensure the most accurate evidence--and therefore justice--
possible.
    As our review of DNA exonerations shows, unvalidated and improper 
forensics contributed to approximately 50% of wrongful convictions 
overturned by DNA testing. In the DNA exonerations alone, we have had 
wrongful convictions based on unvalidated or misapplied serological 
analysis, microscopic hair comparisons, bite mark comparisons, shoe 
print comparisons, fingerprint comparisons \1\, forensic geology (soil 
comparison), fiber comparison, voice comparison, and fingernail 
comparison \2\, among the many forensic disciplines that have produced 
these tragic miscarriages of justice in our courts. There have even 
been a few innocents whose convictions relied, in part, on shoddy DNA 
testing in the early years of its forensic application. It comes as no 
surprise to us that the NAS concluded: ``With the exception of nuclear 
DNA analysis, however, no forensic method has been rigorously shown to 
have the capacity to consistently, and with a high degree of certainty, 
demonstrate a connection between evidence and a specific individual or 
source.'' \3\ The overarching problem has been that all too frequently, 
these other forensic disciplines have been improperly relied upon to 
connect our innocent clients to crime scene evidence.
---------------------------------------------------------------------------
    \1\ Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March 
2009, p. 8.
    \2\ Ibid., p. 13.
    \3\ Strengthening Forensic Science in the United States: A Path 
Forward, Committee on Identifying the Needs of the Forensic Science 
Community, The National Academies Press (2009), p. 7. (Hereinafter NAS 
report).
---------------------------------------------------------------------------
    In contrast to DNA, the vast majority of non-DNA forensic assays 
have never been subjected to basic scientific research or federal 
review. Moreover, as pointed out by the NAS, neither the FBI nor the 
National Institute of Justice have, over the years, ``recognized, let 
alone articulated, a need for change or a vision for achieving it. 
Neither has full confidence of the larger forensic science community. 
And because both are part of a prosecutorial department of the 
government, they could be subject to subtle contextual biases that 
should not be allowed to undercut the power of forensic science.'' \4\ 
Without a push for vigorous adherence to the scientific method, 
innocent people have gone to prison or death row while the real 
perpetrators remained at liberty to commit other violent crimes.
---------------------------------------------------------------------------
    \4\ Ibid., p. 16.
---------------------------------------------------------------------------
    Many non-DNA forensic assays have not been scientifically 
validated, and there is no formal apparatus in place to scrutinize 
developing forensic technology. Though the technology has changed over 
time, the sources of human error, misinterpretation, and misconduct 
have not. Most of the assays used in law enforcement have no other 
application; they were developed for the purpose of investigation, 
prosecution and conviction and took on a life of their own without 
being subjected to the rigors of the scientific process. Essentially, 
the assays were simply accepted as accurate. Many of these forensic 
disciplines--some of which are experience-based rather than data-
based--went online with little or no scientific validation and 
inadequate assessments of their robustness and reliability.
    One case in point is the great strides that have been made in 
bitemark identification research by scientists inspired by the NAS 
report. While forensic dentists have been practicing bitemark 
identification for decades, rigorous research has demonstrated that the 
principles upon which bitemark identification is based are unfounded. 
Using cadaver models, a team of researchers led by Dr. Mary Bush at the 
University of Buffalo found that skin is a poor registration material 
for bitemarks--in some instances dentitions that did not make the mark 
matched a bitemark more closely than the actual set of teeth that 
created the bitemark.\5\,\6\ In subsequent studies, the 
research team established through two and three-dimensional statistical 
analysis of dental models, that dental shape matches could readily be 
found in given populations.\7\,\8\ Together, these studies 
show that statements of dental uniqueness with respect to bitemark 
analysis in an open population are unsupportable, and that distortion 
in skin can be substantial. These findings put into question the 
overall reliability and validity of bitemark analysis. Consider this--
while this research began in earnest in 2009, bitemark identification 
evidence has been admitted in US courts since at least 1948.
---------------------------------------------------------------------------
    \5\ Bush MA, Miller RG, Bush PJ, Dorion RBJ. Biomechanical Factors 
in Human Dermal Bitemarks in a Cadaver Model. J Forensic Sci, 2009; 
54(1):167-76.
    \6\ Miller RG, Bush PJ, Dorion RBJ, Bush MA. Uniqueness of the 
Dentition as Impressed in Human Skin: A Cadaver Model. J Forensic Sci 
2009; 54(4):909-14.
    \7\ Sheets HD, Bush PJ, Brzozowski C, Nawrocki LA, Ho P, Bush MA. 
Dental shape match rates in selected and orthodontically treated 
populations in New York State: A 2 dimensional study. J Forensic Sci, 
2011; 56(3):621-6.
    \8\ Bush MA, Bush PJ, Sheets HD. Similarity and Match Rates of the 
Human Dentition In 3 Dimensions: Relevance to Bitemark Analysis. Int J 
Leg Med 2011; 125(6): 779-784.
---------------------------------------------------------------------------
    While there is research and work that establishes what needs to be 
done to improve various forensic practices, the fact is that no 
existing government entity, nor the forensics community itself, has 
been able to sufficiently muster the resources nor focus the attention 
necessary to use the existing information as a launching pad to 
comprehensively improve the integrity of non-DNA forensic evidence. The 
NAS Report is the first step--and a tremendous one--toward fully 
establishing and acting upon what we already know. From the perspective 
of justice and public safety, it is tragic that it has taken this long 
to act on the desperate need to improve the quality of forensic 
evidence. Given the clear and comprehensive message delivered by the 
NAS on this subject, further delay would be unconscionable.
    We therefore urge the Senate Commerce Committee to develop 
legislation that would make use of existing scientific agencies of the 
U.S. Government to conduct the research and standardization that the 
NAS said is so critical. A scientific funding agency like the National 
Science Foundation (NSF) can be tasked with funding rigorous scientific 
research that will be methodologically sound and will generate 
unassailable work. After a comprehensive assessment of the validity and 
reliability of various forensic science disciplines, the National 
Institute of Standards and Technology (NIST) can lend its expertise to 
basic and applied standard setting. Given NIST's reputation as a highly 
respected and admired standard-setting agency, as well as its history 
of employing Nobel prize-winning scientists who conduct superb research 
and translate basic science to applied commercial standards and its 
tradition of objective, independent, science-grounded work, we agree 
with the NAS report that NIST would make a sensible partner for setting 
those standards. The Department of Justice (DOJ) can then put these 
independently developed standards into practice by overseeing the 
accreditation of laboratories and certification of forensic examiners. 
A federal effort is needed to ensure that the best standard and a 
singular standard is implemented so that we don't have 50 states 
operating under 50 definitions of ``science''; forensic science in 
America needs one standard of science so we can have one standard for 
justice.
    The Innocence Project believes that there needs to be a strong 
relationship between the independent scientists charged with 
undertaking the research and standard-setting functions and the expert 
practitioners who use these techniques each day. It is those users who 
will abide by those standards, so it is essential they be able to adopt 
and follow them. We also believe that for the endeavor to succeed, it 
is important that the new standards be phased-in without causing a 
significant disruption to the criminal justice system. Therefore, we 
believe that practitioners have a critical role to play in advising and 
providing feedback to the scientific research and standard setting 
process. Advice and feedback should also be divined from the vast 
experience accumulated through the apprenticeship model of learning 
among forensic practitioners, which holds great value; that body of 
expertise would be a helpful addition to the rigorous scientific 
research to establish the parameters of a forensic discipline.
    Research scientists, however, who have a background in physics, 
biology, chemistry, statistics, cognitive science, engineering, and 
other sciences, from academic institutions or in science based agencies 
of the Federal government rather than in law enforcement agencies, have 
the training to scrutinize and improve the current body of research. 
The absence of an independent research infrastructure, upon which 
medicine, industry, and technology can rely, has prevented the full 
development of the field of forensic science. Despite good intentions 
and much specialized forensic knowledge, forensic examiners do not have 
the methodological training and specific research knowledge essential 
to develop empirical studies that will withstand criticism and create a 
comprehensive frame for forensic science reform. Forensic science is a 
multi-disciplinary field and the engagement, input, and leadership of 
the scientists, engineers, and statisticians are critically needed for 
reform to work and to restore confidence in the accuracy and 
reliability of forensics.
    It is time for a serious commitment to providing an ongoing and 
permanent scientific system of support for forensic science in order to 
ensure ongoing evaluation and review of current and developing forensic 
science techniques, technologies, assays, and devices; and continued 
government leadership, both publicly and through private industry, in 
the research and development of improved technology with an eye toward 
future economic investments that benefit the public good and the 
administration of justice. The impact of rigorous scientific research 
will be enormous. There is a global market for technologies with an 
application to public safety and the United States has the capacity to 
capture that market with a national commitment today. As the forensic 
market expands to meet this global need, more jobs will be created as 
scientists are engaged in research and more Americans are trained to 
conduct forensic analyses under American developed protocols and 
standards. However, as the United States begins to make greater 
investments in forensic technologies, it is even more important that 
the underlying science of the forensic techniques used in these 
technologies are understood and developing technologies scrutinized 
before they are implemented so that we do not find ourselves in the 
same position in the future.
    The Innocence Project understands that to implement the complete 
package of reforms recommended in the NAS report may take years. 
However, we believe that there are steps the government can take before 
wholesale reform is completed. In the interim period, we can do our 
best to ensure that forensic science is applied to its currently 
supported parameters. Our first suggestion is to direct the National 
Science Foundation (NSF) to set a research agenda for future forensic 
science research. Up to this point, the National Institute of Justice 
(NIJ) has led research activity regarding forensic disciplines. While 
many of their reports have recommended validity and reliability 
research for many non-DNA forensic disciplines, and NIJ has issued 
recent grant solicitations to fund basic validation research, the 
agency has not proposed a clear roadmap for the specific research needs 
for each forensic science discipline addressed in Chapter 5 of the NAS 
report.\9\,\10\ Forensic science is a multidisciplinary 
field that requires the expertise of life and physical scientists, many 
of whom are not aware of the opportunities inherent in this nascent 
field. Development of a specific research agenda will allow scientists 
to identify the contributions they can make to growing the research 
engine of forensic science. A recent NAS study on the NIJ found the 
grantmaking function of the entity to be greatly hampered by the dearth 
of ``researchers'' or staff with a comprehensive scientific research 
background to administer scientific grants.\11\ Additionally, a recent 
DOJ Inspector General report regarding the NIJ's grant award practices 
found deficiencies in the agency's ability to demonstrate a fair and 
open competitive grant making practice.\12\ For this reason, the NSF 
would serve as the ideal agency for developing a comprehensive research 
agenda for the forensic sciences.
---------------------------------------------------------------------------
    \9\ National Institute of Justice, Forensic Sciences: Review of 
Status and Needs (1999).
    \10\ National Institute of Justice, Status and Needs of Forensic 
Science Service Providers: A Report to Congress (2004).
    \11\ National Academy of Sciences, Strengthening the National 
Institute of Justice (2010).
    \12\ U.S. Department of Justice Office of the Inspector General 
Audit Division, Audit of NIJ Practices for Awarding Grants and 
Contracts in FY2005-FY2007 (2009), iii.
---------------------------------------------------------------------------
    A second immediate step Congress and the Administration could take 
is to direct NIST to design a standardized requirement, format, and 
terminology for laboratory reports that serves multiple consumers in 
the criminal justice system. In order for forensic science to mature to 
a discipline with a strong scientific culture, it will be important for 
the reports that laboratories produce to reflect the principles of 
science. Currently, there are no national or even discipline-based 
standards for report writing and courtroom testimony. Many, if not most 
of the wrongful convictions we documented arose when criminalists wrote 
misleading reports or offered testimony which grossly exaggerated the 
probative value of the forensic evidence. By requiring laboratory 
reports to be more comprehensive and for all opinions and conclusions 
to be supported by data or scientific literature, judges, attorneys, 
and fact finders will be provided the same base of information to 
understand the testing and results in a given case.
    A third interim step would be to adopt the discovery rules of the 
Federal Rules of Civil Procedure. Under Rule 26, every expert must 
submit ``a complete statement of all opinions the witness will express 
and the basis and reasons for them; the facts of data considered by the 
witness in forming them'' and ``any exhibits that will be used to 
summarize or support them.'' \13\ In contrast to criminal courts, 
experts in civil courts are required to document their entire testimony 
prior to taking the stand.
---------------------------------------------------------------------------
    \13\ Federal Rules of Civil Procedure, Rule 26, 2(b), i-iii.
---------------------------------------------------------------------------
    Science can light the way to the path forward and every effort 
should be made to support innovation and research. Post-conviction DNA 
exonerations have shown the catastrophic consequences of such a lack of 
research, standards, and oversight. It is clear that the nation's 
forensic science community is ready and willing to work with the 
federal government, law enforcement, and other scientists to ensure a 
brighter future for forensic science. Science-based forensic standards 
and oversight will increase the accuracy of criminal investigations, 
strengthen criminal prosecutions, protect the innocent and the victims, 
and enable law enforcement to consistently focus its resources not on 
innocent suspects, but on the true perpetrators of crimes. For as the 
nation's post-conviction DNA exonerations have proven all too clearly, 
when the system is focused on an innocent suspect, defendant or 
convict, the real perpetrator remains free to commit other crimes.\14\ 
With your support, we will not only significantly enhance the quality 
of justice in the United States, but we will also minimize the 
possibility that tragedies like that endured by the nation's 281 (and 
counting) exonerees and their families will needlessly be repeated time 
and again.
---------------------------------------------------------------------------
    \14\ In the wake DNA exonerations of the wrongfully convicted, that 
same DNA analysis has enabled the identification of 131 of the true 
suspects and/or perpetrators of those crimes.
---------------------------------------------------------------------------
                                 ______
                                 
                           American Statistical Association
                                  Alexandria, VA, December 20, 2011

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

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

Dear Chairman Rockefeller and Ranking Member Hutchison,

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

Enclosures: March 31, 2011 letters to Chairman Rockefeller and Chairman 
Leahy; Statement by the ASA Board of Directors
                                 ______
                                 
                           American Statistical Association
                                     Alexandria, VA, March 31, 2011
Hon. John D. Rockefeller IV,
Chairman,
Senate Commerce, Science, and Transportation Committee,
United States Senate,
Washington, DC.

Dear Chairman Rockefeller,

    Thank you for making forensic science reform a priority for the 
Commerce, Science, and Transportation Committee in 2011. The forensic 
science system has serious problems that are undermining confidence in 
our justice system, as the National Academies' Strengthening Forensic 
Science in the United States: A Path Forward reveals. A justice system 
informed by solid science is imperative. To address the systemic 
deficiencies, Strengthening Forensic Science recommended measures that 
amount to no less than changing the culture of the forensic science 
community.
    The board of directors for the American Statistical Association 
(ASA) issued a statement in April 2010 endorsing Strengthening Forensic 
Science, including its recommendations. On behalf of the ASA Board of 
Directors, I write to urge you to enact these recommendations, 
especially the creation of a National Institute of Forensic Science 
(NIFS) with the independence necessary to address the profound issues 
identified in Strengthening Forensic Science. A new agency is necessary 
because of the strong leadership required to address these issues and 
the current lack of any governance structure in the forensic science 
enterprise.
    We believe an independent agency is the ideal and respectfully ask 
you to explore such an option to the extent possible. If the current 
environment precludes the establishment of a stand-alone NIFS, the 
National Institute of Standards and Technology (NIST) could serve as 
the incubator for NIFS, if the following conditions are met. Most 
importantly, placing NIFS within NIST should be temporary, with the 
legislation specifying that independence be considered after, say, 
three years and realized within, say, five years. NIFS also should have 
the autonomy and resources within NIST to meet its responsibilities and 
foster its independence. We emphasize the importance of a properly 
funded NIFS so that it doesn't tax the many other important and varied 
NIST activities. The guidance around Recommendation 1 in Strengthening 
Forensic Science also should be closely heeded in the creation of a 
NIFS temporarily hosted at NIST.
    An independent NIFS--either from inception or after a short time in 
NIST--is important to the long-term success of NIFS because of the 
importance of strong relationships with the many stakeholder 
communities. These communities range from the Department of Justice 
(DOJ) to the forensic science community to scientists of other 
disciplines (typically associated with the National Science Foundation, 
National Institutes of Health, or other federal agencies). Hosting NIFS 
indefinitely at NIST will not develop the stature among the varied 
stakeholders necessary to transform the forensic science culture.
    Independence from law enforcement agencies is especially 
fundamental to a successful NIFS for a number of reasons. A forensic 
science institute hosted at the DOJ, for example, presents inherent 
potential conflicts of interest because of DOJ's mission to enforce the 
law. Furthermore, because DOJ is so integrally tied to the forensic 
science culture and the current problems, a forensic science institute 
must be independent of DOJ to realize the necessary changes in a timely 
manner. Finally, DOJ lacks the expertise and infrastructure to support 
the scientific needs of a forensic science institute.
    Thank you for your consideration. I attach a copy of the statement 
by the ASA Board of Directors endorsing the Strengthening Forensic 
Science report and citing the importance of sound statistical practices 
to the success of a forensic science institute.
            Sincerely,
                                 Robert N. Rodriguez, Ph.D.
                                                    2012 President,
                                      American Statistical Association.
                                 ______
                                 
                           American Statistical Association
                                     Alexandria, VA, March 31, 2011
Hon. Patrick Leahy,
Chairman,
Senate Judiciary Committee,
United States Senate,
Washington, DC.

Dear Chairman Leahy,

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

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

        There was also a strong consensus in the committee that no 
        existing or new division or unit within DOJ would be an 
        appropriate location for a new entity governing the forensic 
        science community. DOJ's principal mission is to enforce the 
        law and defend the interests of the United States according to 
        the law. Agencies within DOJ operate pursuant to this mission. 
        The FBI, for example, is the investigative arm of DOJ and its 
        principal missions are to produce and use intelligence to 
        protect the Nation from threats and to bring to justice those 
        who violate the law. The work of these law enforcement units is 
        critically important to the Nation, but the scope of the work 
        done by DOJ units is much narrower than the promise of a strong 
        forensic science community. Forensic science serves more than 
        just law enforcement; and when it does serve law enforcement, 
        it must be equally available to law enforcement officers, 
        prosecutors, and defendants in the criminal justice system. The 
        entity that is established to govern the forensic science 
        community cannot be principally beholden to law enforcement. 
        The potential for conflicts of interest between the needs of 
        law enforcement and the broader needs of forensic science are 
        too great. In addition, the committee determined that the 
        research funding strategies of DOJ have not adequately served 
        the broad needs of the forensic science community. This is 
        understandable, but not acceptable when the issue is whether an 
        agency is best suited to support and oversee the Nation's 
        forensic science community. In sum, the committee concluded 
        that advancing science in the forensic science enterprise is 
        not likely to be achieved within the confines of DOJ.
                                 ______
                                 
             American Statistical Association Statement on 
                Strengthening Forensic Science, 4/17/10
    The 2009 National Academies' report, Strengthening Forensic Science 
in the United States: A Path Forward, \1\ identified many serious 
deficiencies in the nation's forensic science system and called for 
major reforms and new research. The report came after years of 
critiques of specific forensic science practices as well as calls for 
reform but especially broke new ground by offering a comprehensive 
review and adding the authority of the National Academies.
---------------------------------------------------------------------------
    \1\ http://www.nap.edu/catalog.php?record_id=12589.
---------------------------------------------------------------------------
    Statisticians have played an important role in this constructive 
criticism and can play an important role in the reform urged by the 
National Academies' report. Indeed, the Strengthening Forensic Science 
report cites examples of the lack of sufficient recognition for sources 
of variability and their effects on uncertainties in forensic science 
analyses. Statisticians are vital to establishing measurement 
protocols, quantifying uncertainty, designing experiments for testing 
new protocols or methodologies and analyzing data from such 
experiments.
    The American Statistical Association Board of Directors recognizes 
the urgent need to improve forensic science because of its pivotal role 
in our judicial system and therefore endorses Strengthening Forensic 
Science in the United States: A Path Forward 1 and the recommendations 
therein. To better achieve many of the report recommendations, the 
report urges the establishment of a separate institute for forensic 
science (Recommendation 1 of the report). The board notes that sound 
statistical practices are essential for the proposed institute to 
achieve its mission. Specific examples include:

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

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

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

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

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

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

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

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

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

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

    It must not be part of a law-enforcement agency

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

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

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

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

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

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

    2. Use of well-accepted statistical methods for analysis of data--
It is critical that appropriate statistical methods be used to analyze 
data obtained in support of forensic methods. The validity of these 
methods should be demonstrated, preferably in peer-reviewed statistical 
or mainstream scientific journals before being used in litigation. This 
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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.
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    \12\ Gastwirth, J.L., ``The Statistical Precision of Medical 
Screening Procedures: Application to Polygraph and AIDS Antibodies Test 
Data,'' Statistical Science (1987), 2, p. 213-238.
    \13\ Morgan, J.P. ``Problems of mass urine screening for misused 
drugs.'' Journal of Psychoactive Drugs, (1984), 16, p. 305-317.

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

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

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    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\
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    \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.'').

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    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\
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    \13\ Exchange programs, fellowships, and scholarships should be 
established to promote interaction and communications between the 
academic, research and forensic science practitioner communities.
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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.

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    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.

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

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

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

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

    RECOMMENDATION 3 (Critical review):

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

    RECOMMENDATION 4 (Error rates):

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

    RECOMMENDATION 5 (Automated techniques):

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

    RECOMMENDATION 6 (Minimizing bias):

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

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

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

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

    RECOMMENDATION 2 (Lawyers and judges):

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

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

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

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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.
---------------------------------------------------------------------------
    \23\ The following should be readily accessible to attorneys 
representing criminal defendants in cases involving scientific 
evidence: (1) all information pertaining to the analysis; (2) 
information pertaining to quality control within the forensic facility; 
(3) information pertaining to the forensic science practitioner; and 
(4) standard operating procedure manuals and validation studies. 
Reports should include: (1) the opinion that will be presented in 
court; (2) all assumptions being made in rendering the above opinion; 
(3) a clear characterization of any limitations and an associated 
statistic that describes the weight that should be attributed to the 
evidence; and (4) the underlying basis of the opinion including 
identification of any published or unpublished material relied on. 
Forensic facilities should provide up-front information regarding the 
results of examinations, all results of automatic database searches 
conducted as part of the examination (e.g., CODIS and AFIS), 
documentation of quality control problems in the facility or associated 
with a particular forensic science practitioner, and standard operating 
procedures and validation studies. While these disclosure requirements 
are broader than the current policies of most forensic facilities, they 
are not onerous and should not only be provided after litigation. In 
fact, some forensic facilities already disclose the case-specific 
information as a matter of course upon request, and/or provide 
protocols and other non-case-specific information publicly online.

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

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

    RECOMMENDATION 7 (Databases):

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

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

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

    RECOMMENDATION 2 (Indigent defense):

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

    RECOMMENDATION 3 (Experts):

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

    RECOMMENDATION 4 (Consultation):

        Government forensic laboratories and other facilities that 
        contract with the government should be open and accessible to 
        both prosecutors and defense lawyers.\25\ In that regard, 
        forensic science practitioners and directors should be 
        available to meet with defense counsel and experts retained by 
        the defense to discuss and answer questions regarding the 
        methodologies, tests, and findings in a particular case. 
        Government forensic science practitioners should also, when 
        practical, be available to consult with defense counsel about 
        cases from the same or other jurisdictions in circumstances in 
        which there is no legal conflict of interest if defense counsel 
        elects to seek assistance from such experts. Best practices 
        generally prescribe that defense counsel consult an expert who 
        is entirely independent of law enforcement and the prosecution. 
        There should, therefore, never be a requirement or expectation 
        that defense counsel will rely upon government forensic science 
        practitioners as experts instead of consulting with private, 
        independent experts.
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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.

---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ Ten myths of science: Myth #5 ; Science and its Methods Provide 
Absolute Proof http://www.bluffton.edu/bergerd/NSC_111/TenMyths.html.
    \3\ Cole, S., Forensics without uniqueness, conclusions without 
individualization: the new epistemology of forensic identification Law, 
Probability and Risk 2009;
---------------------------------------------------------------------------
    Another observation made by Judge Edwards is:

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

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

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

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

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

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

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

    The path forward for forensic science remains shrouded in 
uncertainty. We have addressed a few of the most pressing issues here 
and look forward to continuing to participate in elevating our 
profession. We leave you with this closing thought:
    Forensic science developed historically as an adjunct to the law 
enforcement effort, subject to the same point of view (bias) as law 
enforcement. In our parlance, forensic science has been used for 
verification, simply corroborating what is believed to be true without 
actually challenging it. However, science is capable of providing much 
greater value to the law, by serving as an independent check in the 
administration of justice. The paradigm must shift away from science 
used in blind support of law enforcement to science employed as one 
instrument, among many, with which to administer justice.
                                 ______
                                 
  Prepeard Statement of Dr. Keith B. Morris, Director of Forensic and 
            Investigative Science, West Virginia University
    The Forensic & Investigative Science Program (FIS) at West Virginia 
University has been in existence for more than 10 years. During this 
time it has developed both its undergraduate and masters degree 
programs.
    The quality of forensic science programs needs to be evaluated 
based on a number of factors namely the quality of the students it 
produces, the quality and applicability of the research it produces, 
its involvement and support to the community and, in the case of WVU as 
a land-grant university, the state in which it is located. The 
administration of WVU believes that to be positive all programs need to 
have three features: faculty, facilities, and equipment. It is 
challenging to recruit suitable faculty in the field, but WVU is in a 
fortunate position to have a faculty cadre with both the academic and 
practical experience in forensic science. These experiences are used to 
develop students both at the graduate and undergraduate level. Three 
students have graduated with PhDs in Chemistry (with a focus in 
forensic science) over the past 5 years and currently there are 9 
students enrolled in this PhD program. In addition, six students have 
graduated with masters degrees, one of whom received the Emerging 
Forensic Scientist Award at the 2008 meeting of the American Academy of 
Forensic Sciences. Currently the program has 380 registered majors and 
pre-majors on the undergraduate level and 16 in the masters program. 
Facility wise the program has 18,000 sq. ft. of laboratory space 
dedicated solely for its use as well as a crime scene facility 
consisting of three houses and a vehicle processing laboratory. The 
program is searching for two additional tenure track positions to 
expand the current research faculty.
    The program has, as it has matured, received significant donations 
and support for its activities. Of specific note is the donation from 
Mr. Ming Hsieh of 3M Cogent. Part of this donation included a Cogent 
AFIS system. The FBI has made available 1.8 million fingerprint sets to 
the program for specific research projects. Mr. Hsieh has also endowed 
two distinguished professorships in the FIS program. As far as we are 
aware the FIS program is the only forensic program to have endowed 
professorships. This supports the concept of the National Academy of 
Sciences report in developing new strategies for research in forensic 
science. Faculty members in the program have had research funded by the 
Department of Defense, the National Institute of Justice, the FBI, 
NIST, and others. Research is focused on areas identified by the NAS 
report as weak points.
    Evaluating the recommendations of the NAS study, it is evident that 
the role that WVU has played, and will continue to play, in teaching 
and research will support the future of the forensic science enterprise 
in the USA. Students at the undergraduate level are well prepared. The 
FIS Program believes that strong Federal support for research 
specifically focused on forensic science is needed where a well-defined 
research agenda has been determined.
                                 ______
                                 
   Prepared Statement of Robin T. Bowen, Interim Director, Forensic 
              Science Initiative, West Virginia University
    The West Virginia University (WVU) Forensic Science Initiative 
(FSI) plays a critical role in the identification, development, 
coordination, and execution of forensic science resource and 
development projects that directly aid state and local forensic science 
agencies. For instance, FSI provide ASTM standards to crime 
laboratories throughout the United States. FSI has a long and developed 
record of demonstrated service in the forensic community. Since its 
inception in 2002, the FSI has provided research, testing and 
evaluation, training, and resources to the forensic science community. 
The FSI seeks to improve and professionalize forensic science through 
peer interactions and training in the sciences, technologies, and 
processes critical to the application of forensic science. Thousands of 
forensic professionals have been helped with their jobs, careers, and, 
most importantly--cases by utilizing projects offered by FSI. Of 
forensic professionals surveyed who have used FSI resources, 95% report 
that the content has been useful to them in their daily official 
duties.
    FSI projects maintain the mission of the National Institute of 
Justice Office of Science and Technology, specifically, ``to carry out 
programs that, through provision of equipment, training, and technical 
assistance, improve the safety and effectiveness of law enforcement 
technology and improve access to such technology by Federal, State, and 
local law enforcement agencies.'' According to the Census of Publicly 
Funded Forensic Crime Laboratories, training comprises less than 1% of 
criminal justice agency's total budget, thus showing a severe need for 
such training programs. Laboratories are facing increased workloads, 
backlogs, and ever changing technologies and methodologies despite the 
decrease in budgets. FSI projects address training needs of the 
forensic community. These needs are stated in the National Research 
Council report, Strengthening Forensic Science in the United States: A 
Path Forward (2009) as well as these studies funded by NIJ--Forensic 
Sciences: Review of Status and Needs (1999);\1\ Education and Training 
in Forensic Science: A Guide for Forensic Science Laboratories, 
Educational Institutions, and Students (2004),\2\ developed by TWEGD 
and a report prepared by ASCLD or NIJ, published in May 2004, which has 
become known as the 180-day Study Report: Status and Needs of United 
States Crime Laboratories: \3\
---------------------------------------------------------------------------
    \1\ National Institute of Justice. 1999. Forensic Sciences: Review 
of Status and Needs. Washington, D.C.: National Institute of Justice.
    \2\ National Institute of Justice. 2004. Education and Training in 
Forensic Science: A Guide for Forensic Science Laboratories, 
Educational Institutions, and Students. Washington, D.C.: National 
Institute of Justice.
    \3\ American Society of Crime Laboratory Directors. 2004. 180-day 
Study Report: Status and Needs of United States Crime Laboratories. 
Largo, FL: ASCLD.

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

    Training and education are persistent needs in the forensic science 
profession. WVU's Forensic Science Initiative is a leader in training 
forensic professionals. To date, hundreds of classes have been held at 
WVU and around the nation in topics as diverse as fiber and textile 
analysis, crime scene investigation, court testimony, bloodstain 
pattern analysis, and shooting incident reconstructions. Thousands of 
forensic scientists have gained new skills or enhanced existing ones 
through FSI courses. In order to best serve state and local forensic 
science providers, these courses are offered at no cost to participants 
with lodging costs offset through the FSI. Since 2006, FSI has held 
multiple large-scale training events, each conducted over 6 days with 
roughly 30 separate classes offered in a mini-semester format. 
Thousands of forensic professionals have attended and no training of 
forensic professionals at this scale has been attempted by any other 
entity.
    While the WVU FSI has become synonymous with training forensic 
professionals, many forensic professionals cannot afford training, are 
not permitted to participate, or cannot take time away from casework to 
attend training sessions in person.
    To meet the training needs of those who cannot get away from the 
laboratory, FSI has developed 25 online courses in collaboration with 
the Extended Learning Department at WVU. These courses have won 
international awards for content and design. Courses include Ethics in 
Forensic Science, Forensic Photography, Hair Evaluation for DNA 
Analysis, The Science of Fingerprints, Integrated Ballistic 
Identification Systems (IBIS), and many more that directly address 
needs stated by the NAS report as well as the forensic science 
community. Thousands of professionals have taken these courses; several 
agencies have made some courses required as a part of their in-house 
training curriculum. These courses are provided at no cost to duly 
authorized law enforcement personnel, crime laboratory personnel, 
correctional officers, and crime scene staff with the administrative 
costs being borne by the FSI.
    The program's overall impact on the forensic science community is 
training practitioners to thoroughly process, investigate, and 
prosecute criminal cases, resulting in more efficient and effective 
practices that will ultimately lead to a safer and happier community. 
By any measure, the training has been a success, delivering quality 
content with reliable logistics.
    The FSI has involved numerous faculty members, departments, and 
schools (Arts and Sciences, Engineering, Business and Economics, and 
Health Sciences) within WVU in past forensic resource projects, 
research, testing and evaluation, and training. These projects have 
provided needed deliverables to the forensic science community while 
building award-winning infrastructure at WVU for future projects and a 
competitive ability for other grants. The FSI has also broken new 
ground by initiating the study of forensic laboratories from a business 
and economics perspective. The Forensic Science Initiative is an 
integral part of building the quality reputation of forensic sciences 
at WVU and across the world.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                     to Dr. Constantine A. Gatsonis
Scale of the Issue
    Question 1. Some have raised criticisms of the National Academy of 
Sciences review of forensics claiming that the panel lacked forensic 
analysts, did not review all of the existing research, and did not 
consider the knowledge gained by decades of courtroom scrutiny. KDr. 
Gatsonis, as a committee member, how would you respond to each of these 
criticisms?
    Answer. The NAS Committee had broad representation from the 
forensics communities, including a current director of a state 
department of forensic sciences, two medical examiners, two professors 
in forensic science programs, and a former deputy director of the FBI 
forensics laboratory. As detailed in the report, the Committee heard 
from a very broad range of forensic experts and reviewed voluminous 
published materials.

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

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

    Question 2a. What should be the role of the Federal Government in 
addressing the needs of forensic science, and what should be left to 
state and local governments?
    Answer. The major conclusion of the Committee on this point is the 
need for a new independent Federal entity, the National Institute of 
Forensic Science (NIFS). The mission and goals of NIFS are described in 
the report. The intention is not to suggest a Federalization of the 
entire forensic sciences system. However, an entity like NIFS will be 
able to provide the necessary cohesion, overview, direction, and 
funding.
The Need for Scientific Independence
    Question 3. The primary recommendation of the National Academy's 
report was the establishment of an independent agency to oversee and 
support forensic science. However, the current fiscal realities make 
the creation of a new Federal agency difficult. A failure of the 
current system has been the lack of involvement of the academic 
community in research and standard setting. How can we guarantee their 
participation without support from a Federal agency dedicated to 
forensic science?
    Answer. The academic community can make major and on-going 
contributions to the forensic disciplines, both in research and in 
education. In order for this to materialize, it is important to develop 
a coherent national approach to the challenges of the forensic 
disciplines and to provide the necessary direction and funding. The 
role of NIFS in this effort seems indispensable.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                      Dr. Constantine A. Gatsonis
    Question. The National Research Council has raised concerns with 
the science behind ballistic matching and other forms of analysis 
involving guns. How can we improve our ability to prevent and prosecute 
gun crime using forensic science?
    Answer. As detailed in the relevant section of Chapter 5 of the 
report, much research is needed to address the scientific challenges in 
firearm analysis. For example, we need to understand and potentially 
improve the reliability and repeatability of methods used in firearm 
analysis and to address fundamental questions about the possibility of 
identifying firearms uniquely. In order to be effective, this research 
should be integrated into a strategic vision for the scientific 
development of the forensic disciplines and, of course, should be 
supported with adequate funding.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Boozman to 
                      Dr. Constantine A. Gatsonis
    Question 1. Do you think that with additional research, including 
on error rates and validity, forensic science disciplines, such as 
fingerprint analysis, ballistics, and hair analysis, could be used with 
greater accuracy and reliability?
    Answer. The research described in this question will assess the 
potential for improvement in the techniques currently used in each of 
the forensic disciplines. As is typically the case in science, this 
research may also point to new approaches that go well beyond current 
capabilities.

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

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

    Question 4. What are your thoughts on creating a central repository 
of validated protocols that all forensic science providers can access? 
Do you think this proposal would be an effective and efficient way to 
address some of the concerns you all have raises?
    Answer. The creation and promotion of standards and best practices 
across the country would benefit substantially from central resources 
such as the one you describe. These resources would achieve their full 
potential if they are integrated in a national forensics effort.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                         to Geoffrey S. Mearns
Scale of the Issue
    Question 1. Some have raised criticisms of the National Academy of 
Sciences review of forensics claiming that the panel lacked forensic 
analysts, did not review all of the existing research, and did not 
consider the knowledge gained by decades of courtroom scrutiny. Mr. 
Mearns, as a committee member, how would you respond to each of these 
criticisms?
    Answer. I do not think these criticisms have merit.
    The claim that the NAS committee lacked forensic science analysts 
is demonstrably unfounded. Of the 17 members of the committee, four 
have extensive experience as forensic science analysts: Mr. Pete M. 
Marone; Dr. Randall S. Murch; Dr. Robert Shaler; and Dr. Jay Siegel. As 
detailed in Appendix A of the NAS Report, each of these highly 
respected experts has extensive experience as a forensic analyst, and 
their experience covers a wide variety of forensic science disciplines. 
Two other members of the NAS committee, Dr. Marcella F. Fierro and Dr. 
Ross E. Zumwalt, have extensive experience as forensic science analysts 
in a specific discipline--as medical examiners.
    The claim that the NAS committee did not review the relevant 
research is also unavailing. I will not fully describe the scope and 
depth of the NAS committee's research, but I will highlight several 
important points in response to this criticism.

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

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

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

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

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

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

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

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

    Question 4a. What should be the role of the Federal Government in 
addressing the needs of forensic science, and what should be left to 
state and local governments?
    Answer. As discussed in the NAS report and briefly summarized 
above, the Federal Government must assume a leadership role in order to 
address the problems that presently plague many forensic science 
disciplines. Nevertheless, state and local governments have a very 
important role to play. Among other things, they can encourage their 
respective colleges and universities to develop interdisciplinary 
educational programs to train forensic scientists and legal 
practitioners--prosecutors, defense lawyers, and judges. State and 
local governments can also position these institutions to conduct the 
research agenda established at the national level. Finally, state and 
local governments can require their law enforcement agencies and 
officials to adopt national standards and best practices.
The Need for Scientific Independence
    Question 5. The primary recommendation of the National Academy's 
report was the establishment of an independent agency to oversee and 
support forensic science. However, the current fiscal realities make 
the creation of a new Federal agency difficult. How can we meet this 
need for independent research and oversight within existing Federal 
agencies?
    Answer. I remain convinced that Congress should create a new, 
independent forensic science agency. I do not believe that any existing 
agency, including DOJ or NIST, is capable of implementing all of the 
recommendations needed to address all of the problems we identified in 
the NAS report.
    If Congress were to conclude, however, that it is impracticable to 
create a new, independent agency at this time, then Congress can 
achieve some progress. For instance, Congress can direct NSF and NIH to 
allocate more funding for forensic science research. Congress should 
also direct the National Academies to develop a research agenda that 
would be conducted with this additional funding.
    Finally, Congress could direct the DOJ to coordinate the creation 
of a national organization to develop mandatory standards for 
accrediting forensic science labs and certifying forensic science 
practitioners. In order to ensure that these standards were fully 
effective, Congress could pass legislation providing that any forensic 
science expert who intends to offer testimony in Federal court must be 
certified and be associated with an accredited lab before their 
testimony is deemed admissible.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                           Geoffrey S. Mearns
    Question. You and the other witnesses offered a number of ideas on 
improving the use of forensic science in our criminal justice system. 
Forensic science can also be used to improve homeland security, 
particularly when it comes to preventing attacks and identifying 
evidence after a disaster. How can the recommendations made in the 
hearing be tailored to meet the unique needs of homeland security?
    Answer. Good forensic science practices are of clear value from a 
homeland security perspective because such practices can assist in 
bringing criminals to justice and in dealing with the effects of 
natural and human-made mass disasters. Forensic science techniques 
enable the thorough investigations of crime scenes. Routine and 
trustworthy collection of digital evidence, and improved techniques and 
timeliness for its analysis, can be of great potential value in 
identifying terrorist activity. In short, a strong and reliable 
forensic science community is needed to maintain homeland security.
    To capitalize on this potential, however, the forensic science 
communities must be effectively coordinated with homeland security 
efforts, so that they can contribute when needed. To be successful, 
this coordination requires: (1) the establishment of good working 
relationships among Federal, state, and local jurisdictions; (2) the 
creation of strong security programs to protect data transmittals 
across jurisdictions; (3) the development of additional training for 
forensic scientists and crime scene investigators; and (4) the 
promulgation of contingency plans that will promote efficient team 
efforts on demand. Improvements in the forensic science community could 
greatly enhance the capabilities of homeland security.
    Therefore, Congress should provide funding to prepare forensic 
scientists and crime scene investigators for their potential roles in 
collecting, maintaining, and analyzing evidence from events that affect 
homeland security, so that maximum evidentiary value is preserved from 
these unusual circumstances and the safety of these personnel is 
guarded. This preparation should also include planning and 
preparedness, including exercises, for the interoperability of local 
forensic personnel with Federal counterterrorism organizations.
                                 ______
                                 
    Response to Written Question Submitted by Hon. John Boozman to 
                           Geoffrey S. Mearns
    Question. In your testimony, you discussed the evolution of DNA 
analysis, and how it has become a reliable forensic method. Mr. Mearns, 
based on your work in this area, could you talk about the role of the 
DNA Advisory Board at the Department of Justice in successfully 
creating a national gold standard for DNA analysis?
    Answer. I do not have personal experience with the DNA Advisory 
Board (``the Board''). It is my understanding, though, that the Board 
has played a very constructive role in successfully establishing DNA 
testing and testimony as a standard to which other forensic science 
disciplines should aspire. For example, the Board has helped to develop 
quality assurance standards and appropriate proficiency testing 
methodologies.
    Notwithstanding this success, however, I do not think we should 
expect that the DOJ and the FBI can achieve this same level of success 
with respect to other forensic science disciplines, because our 
experience with DNA was different in one very important respect: the 
use of DNA testing and analysis in criminal investigations and 
prosecutions emerged from scientific research, but the vast majority of 
the other forensic science disciplines emerged from the law enforcement 
community. With respect to DNA, its origin enabled the DOJ and the FBI 
to create, on a blank canvas, the needed standards and protocols. I 
believe that, because of the tendency of all law enforcement officers, 
including those in the DOJ and the FBI, to rely too heavily on their 
past experiences and to cling to their preconceived notions of the 
various forensic science disciplines, we should not assume that the DOJ 
and the FBI can replicate their success with DNA analysis in the other 
forensic science disciplines, which emerged from--and remains embedded 
within--the law enforcement culture.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                         to Dr. Terry W. Fenger
Scale of the issue
    Question 1. While the National Academy's report highlighted the 
depth and breadth of the issues in forensic science, how long has this 
actually been a problem? What have been the impediments to getting 
these issues addressed?
    Answer. The focus of my comments expands upon those presented in 
the U.S. Senate Commerce Committee hearing held on December 7, 2011. My 
comments were limited to the development and enhancement of existing 
forensic science programs in higher education. Overall there is limited 
Federal funding directed towards establishing high quality forensic 
science programs. As technologies employed in forensic investigations 
continue to develop, if certification of forensic scientists becomes 
mandatory, and if accreditation of all forensic laboratories becomes a 
requirement, the demand for highly qualified forensic scientists will 
increase exponentially. A new generation of forensic scientists will 
not only be required to have technical knowledge and skills to perform 
analysis of crime evidence, but next-generation forensic scientists 
will need to participate in research, both basic and applied, in the 
large number of disciplines that constitute forensic science. Crime 
laboratories cannot be burdened with educating and training newly-hired 
forensic scientists that enter laboratory systems. The responsibility 
must fall on academic programs to prepare students for the workforce, 
in order to minimize crime laboratory based training upon being hired. 
Academic forensic science programs should also serve as a resource for 
other stakeholders in the criminal justice system by providing 
continuing education to forensic scientists, judges, attorneys, members 
of law enforcement, medical examiners and certain members of the 
medical profession, e.g., forensic nurses. To ensure the quality of 
education of students and continuing education of members of the 
criminal justice system, accreditation of academic programs, both at 
the graduate and undergraduate levels, is essential. Prior to 2003 
accreditation of forensic science programs in academia was non-
existent, although the need for establishing accreditation standards 
was well recognized. The impediments for establishing accreditation 
standards are multifold. Prior to popularity of forensics science among 
the TV viewing population and high profile criminal cases that 
highlighted the role of forensic scientists, forensic science was not 
embraced as an academic discipline by most colleges and universities. 
Therefore, awareness of forensic science and the realization of the 
need for highly qualified graduates in this discipline by the academic 
community has been a major impediment. Funding for the establishment of 
forensic science programs at the undergraduate and graduate levels has 
also been lacking. Some academic programs develop a few courses with 
forensic science underpinnings and link them to courses with little 
forensic science focus and offer them as a forensic science program or 
area of emphasis. Key to ensuring high quality education is 
accreditation of forensic science programs through the Forensic Science 
Education Programs Accreditation Commission (FEPAC).
    Academic programs in forensic science have focused on undergraduate 
and Masters level graduate education. Currently, there is a paucity of 
PhD granting programs in forensic science, which equates to a lack of 
PhD level faculty to staff undergraduate and graduate programs and 
conduct discipline-specific research. Traditionally, scientists from 
other disciplines, such as chemistry and biology have shifted their 
professional focus to include forensic science. The lack of PhD 
granting programs in forensic science has also hampered the development 
of research programs in academia. Although chemistry and biology based 
forensic research has developed well at some universities, comparative 
disciplines, such as tool mark examination and latent print 
examination, have not fared as well. The lack of PhD faculty in 
academia with substantial experience in the comparative forensic 
sciences has contributed to the inability of higher education to 
address the needs for forensic scientists in comparative disciplines.
The Role of the Federal Government
    Question 2. Forensic science is practiced in local, state, and 
Federal jurisdictions. How would changes in Federal crime labs 
propagate to labs at the state and local levels? What should be the 
role of the Federal government in addressing the needs of forensic 
science, and what should be left to state and local governments?
    Answer. Again focusing only on higher education in forensic 
science, from my experiences funding is limited both at the state and 
national levels for the establishment and development of forensic 
science programs at undergraduate or graduate levels. I recommend that 
Federal agencies provide grant-based funding to accredited, academic 
programs or those seeking accreditation, in order to enhance research 
opportunities, to develop areas of forensic science which are not 
traditionally covered in academic programs and to provide funding for 
outreach training for stakeholders throughout the criminal justice 
system. Research grants in all aspects of forensic science, 
particularly in the comparative sciences, are much needed. Grants to 
support research sabbaticals are essential to promote interactions 
between researchers and working laboratories. A grant program that 
would encourage forensic practitioners working in various forensic 
science disciplines to participate in research projects in academia 
would further partnerships between crime laboratories and laboratories 
within academia. Grant funding of post-doctoral research fellowships is 
also needed once doctoral programs in forensic science become a 
reality.
The Need for Scientific Independence
    Question 3. Research, standards, and regulations are important, but 
it is the people working in crime labs who put these practices to use. 
How can we facilitate dialog between researchers and practitioners for 
the best practical outcome?
    Answer. The NAS Report emphasizes the need for all stakeholders in 
the criminal justice system to work cooperatively for the advancement 
of forensic science, the judiciary and legal systems and academics. 
Although opinions may differ, this writer suggests that there is only a 
minimal representation of academicians on national committees that 
develop policies governing forensic science at state and national 
levels.
    Traditionally crime, laboratories fall under the control of law 
enforcement which does not routinely interact with academic program. 
FEPAC accreditation standards, however, promote these interactions and 
make it a requirement for the development of strong ties between 
working crime laboratories and accredited forensic science programs. 
The formation of a Scientific Working Group of Forensic Science 
Educators (SWGFSE) to develop a national plan for developing and 
maintaining quality, accredited forensic science programs in 
conjunction with forensic laboratories would be one suggestion. A 
funding mechanism needs to be established to sustained SWGFSE as a 
permanent working group. SWGFSE could help develop academic curriculum 
that will best position graduates to pass a national certification 
examination if national certification becomes a reality.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Boozman to 
                          Dr. Terry W. Fenger
    Question 1. You discuss the need for doctoral programs in forensic 
science. What topics would be covered that may ordinarily not be 
covered in other doctoral programs that overlap with forensic science? 
What other fields closely overlap with forensic science? For example, 
would forensic psychiatry be covered in a program in psychiatry?
    Answer. Interest in forensic science as a career has grown 
exponentially for various reasons. Some observers suggest that the CSI 
effect plays a major role in stimulating interests of student in 
forensic science. Young people are influenced by the myriad of 
television shows that emphasize the importance of forensic science in 
solving crime. The crime laboratory is presented as a high tech, 
dynamic environment which allows criminal cases to be solved in a short 
time span. As the plot unfolds during these programs, the same 
individuals that investigate the crime scenes are also the ones that 
analyze the evidence in the forensic laboratory, which conveys the 
impression that lab analysts also have the opportunity to chase down 
the bad guy. Some students are attracted to forensic science because it 
allows them to use scientific principles to solve real life problems 
and to have a direct impact on society. The quality and reputation of 
the accredited, forensic science program at MU is also a primary factor 
in attracting students. Because of these and other reasons we have many 
more students interested in our program than we can accept. Marshall's 
two year Master's degree accepts a maximum of 20 students per year. 
This upper limit is determined by the limited number of laboratories 
available to instruct students in several forensic disciplines, 
including chemistry and microscopy. Another factor that limits class 
size at MU is the small number of full-time forensic science faculty 
that are dedicated to the program. Relative to the Marshall Forensic 
Science Program approximately 100 students apply to the program each 
year for the 20 openings. Interest in entering the program is greater 
than the actual applicant numbers. Students with undergraduate degrees 
in criminal justice usually do not have the prerequisite science 
courses required for admission into the MUFS program and therefore they 
do not qualify despite being interested in the field.
    The total number of applicants has declined slightly since the 
inception of the MU Forensic Science Program in 1995. This decline 
reflects the development of forensic science offerings at a large 
number of universities both at the undergraduate and graduate levels. 
Therefore there is greater competition for well-qualified students.

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

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

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

        Forensic Y-STR Analysis Training

        Forensic Relationship DNA Analysis Training

        Sexual Assault Nurse Examiner Training

        FBI Crime Scene Training

        Technical Assistance Program (TAP)

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

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



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

Dear Dr. Fenger:

    On behalf ofthe Metropolitan Police Department (MPD) of the 
District of Columbia, we would like to extend our gratitude and thanks 
to the Marshall University Forensic Science Center. Their efforts in 
the development and implementation of a DNA training program 
specifically designed for the MPD Crime Laboratory is most appreciated.
    I would like to give special recognition to Mr. Jason Chute, Mr. 
Justin Godby, and Mr. Joshua Stewart for their time and dedication 
spent to personalize the training for our MPD analysts. Their positive 
attitudes and unselfish transfer of knowledge will have a lasting 
effect on the development of the careers of the MPD analysts as 
forensic scientists in the laboratory, and in judicial proceedings.
    It is anticipated that the efforts made in this training endeavor 
will significantly contribute to successful outcomes in criminal 
investigations. We look forward to a long and lasting partnership with 
Marshall University and the Forensic Science Center.
            Sincerely,
                                           Cathy L. Lanier,
                                                   Chief of Police.
                                        Metropolitan Police Department.
                                 ______
                                 
               International Association for Identification
                                                    August 21, 2009
Robert J. Garrett,
President,
Metuchen, NJ.
                         Presidential Citation
    The Twins Study, sponsored by the International Association for 
Identification, was a research effort initiated to find scientific 
support for the basis of biological uniqueness as regards the 
arrangement and occurrence of friction ridge features on the palmar 
surface of the human hand. It was important to establish a database 
which would allow researchers to examine the level of similarity which 
may exist between the friction ridge characteristics of people who are 
genetically identical. This effort required the recording of friction 
ridge detail and the analysis of DNA samples collected from study 
participants to verity monozygotic or familial origins. The DNA results 
represented crucial information needed to support all future research 
in this area.
    The Marshall University Forensic Science Center is hereby commended 
and extended the gratitude of the International Association for 
Identification for their significant contribution to this research 
project. Of particular note were the efforts of Dr. Terry Fenger, 
Director of the Forensic Science Center and Mr. Jason Chute, DNA 
Technical Leader.
    It is my great privilege. as President of the International 
Association for Identification, to offer this salutation in recognition 
oft he center's support and cooperation in furthering scientific 
research in friction ridge identification.

                                         Robert J. Garrett,
                                                         President.
                                 ______
                                 
                Marshall University Forensic Science Center
                                           Huntington, WV, May 2011
                     Excellence in Forensic Science

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                  
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