[Senate Hearing 113-274]
[From the U.S. Government Publishing Office]
S. Hrg. 113-274
FROM THE LAB BENCH TO THE COURTROOM:
ADVANCING THE SCIENCE AND STANDARDS
OF FORENSICS
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JUNE 26, 2013
__________
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 THIRTEENTH CONGRESS
FIRST SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California JOHN THUNE, South Dakota, Ranking
BILL NELSON, Florida ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota DEAN HELLER, Nevada
MARK WARNER, Virginia DAN COATS, Indiana
MARK BEGICH, Alaska TIM SCOTT, South Carolina
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
BRIAN SCHATZ, Hawaii DEB FISCHER, Nebraska
WILLIAM COWAN, Massachusetts RON JOHNSON, Wisconsin
JEFF CHIESA, New Jersey
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
John Williams, General Counsel
David Schwietert, Republican Staff Director
Nick Rossi, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel and Chief Investigator
C O N T E N T S
----------
Page
Hearing held on June 26, 2013.................................... 1
Statement of Senator Rockefeller................................. 1
Statement of Senator Thune....................................... 4
Statement of Senator Chiesa...................................... 41
Statement of Senator Warner...................................... 44
Statement of Senator Blumenthal.................................. 51
Statement of Senator Ayotte...................................... 53
Witnesses
Dr. T. (Tjark) B.P.M. Tjin-A-Tsoi, Chief Executive Officer,
Netherlands Forensic Institute................................. 5
Prepared statement........................................... 7
Michael R. Bromwich, Managing Principal, The Bromwich Group LLC
and Partner, Goodwin Procter LLP............................... 19
Prepared statement........................................... 21
Gregory A. Schmunk, M.D., President, National Association of
Medical Examiners and Chief Medical Examiner, Polk County
Medical Examiner's Office...................................... 25
Prepared statement........................................... 27
Jill Spriggs, Secretary, Consortium of Forensic Science
Organizations.................................................. 34
Prepared statement........................................... 36
Appendix
Response to written questions submitted to Dr. T. (Tjark) Tjin-A-
Tsoi by:
Hon. John D. Rockefeller IV.................................. 59
Hon. Mark Warner............................................. 60
Response to written questions submitted to Michael R. Bromwich
by:
Hon. John D. Rockefeller IV.................................. 62
Hon. Amy Klobuchar........................................... 63
Hon. Mark Warner............................................. 63
Response to written questions submitted to Dr. Gregory A. Schmunk
by:
Hon. John D. Rockefeller IV.................................. 65
Hon. Amy Klobuchar........................................... 67
Hon. Mark Warner............................................. 68
Response to written questions submitted by Hon. John D.
Rockefeller IV to Jill Spriggs................................. 70
FROM THE LAB BENCH TO THE COURTROOM:
ADVANCING THE SCIENCE AND STANDARDS
OF FORENSICS
----------
WEDNESDAY, JUNE 26, 2013
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 2:40 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. Apologies for being late.
We have a chance to welcome today Senator Chiesa, who was
attorney general 2 days ago?
[Laughter.]
Senator Chiesa. Three weeks ago.
The Chairman. Three weeks ago.
Senator Chiesa. Yes.
The Chairman. And now you are here.
Senator Chiesa. They made me resign the same day, yep, that
the Governor wrote his letter. So, yes, I am thrilled to be
here. Thank you.
The Chairman. But you are not going to be here for just a
day.
Senator Chiesa. I am here until October.
The Chairman. Until October? And then you are absolutely
out? That is not fair.
Senator Chiesa. Out and unemployed. I don't even have a job
to go back to.
[Laughter.]
The Chairman. Out and unemployed?
Senator Chiesa. Yes.
Senator Thune. Mr. Chairman, if I might, we need to take
full advantage of his expertise while he is here.
The Chairman. Yes.
Senator Thune. And, as you mentioned, he is a former
Attorney General. I want to welcome Senator Chiesa to the
Committee.
The Chairman. I am sorry. That was----
Senator Thune. No, no, no. I appreciate your willingness to
welcome him here, as well.
Senator Chiesa served as Assistant U.S. Attorney in New
Jersey and, of course, New Jersey Attorney General. And his
experience and expertise will be of great value, because many
of the subjects under the jurisdiction of our Committee are
areas that he has experience in, especially on the subject that
we are going to talk about today, which is an important one.
And I might add, too, Mr. Chairman, and I would warn our
colleagues, that he does bring a love of sports, in particular
his alma mater of Notre Dame, to the Committee. And so I
suspect when we get into football season this fall, we will be
hearing more from him on that subject, as well.
But, anyway, delighted to have you here, Jeff.
Senator Chiesa. Senator Thune, thank you very much. And I
am still recovering from the Alabama loss, so, please----
[Laughter.]
Senator Chiesa.--nobody bring that up. Thank you.
The Chairman. Hey, you have to know something. I am the
only human being in the history of this country to be on the
board of the University of Notre Dame and not be a Catholic.
[Laughter.]
Senator Chiesa. We are glad to have you.
[Laughter.]
The Chairman. And it was during the Vietnam War, when
everybody else was going crazy. Everybody at Notre Dame, clean-
shaven, held the door open, respected people older than they
were. And it all happened because Father Hesburgh sort of ran
the place, right?
Senator Chiesa. He sure did. He was the president when I
was there. I graduated in 1987, which was Father Hesburgh's
last year as president.
The Chairman. Yes.
Senator Chiesa. And he is a towering figure there.
The Chairman. Yes. I think if they had had a board vote, I
would have gotten no votes at all.
[Laughter.]
Senator Chiesa. I doubt that.
The Chairman. But I loved it. Twelve years.
Senator Chiesa. That is great.
The Chairman. I loved it.
Senator Chiesa. Terrific.
The Chairman. Again, I apologize.
Today's hearing continues a discussion that we started in
the last Congress about improving the science used to catch
criminals and solve crimes. And I have to tell you, I am really
into this subject, and I am really happy that we are having
this hearing.
But before we get to the ongoing challenges in forensic
science, I would like to start with an amazing success story.
It is called ``DNA fingerprinting.''
We have seen this incredible technology represented so many
times on ``CSI,'' et cetera, et cetera, shows that people
watch, me included, and other crime shows that we take it for
granted. But we shouldn't. It didn't exist 30 years ago at all.
Today, it is one of our judicial system's most important tools
for convicting the guilty and exonerating the innocent.
DNA fingerprinting has grown so effective and so precise
that even a few cells collected from sweat, blood, or saliva
can be enough to link a suspect to the crime and have it stand
up, virtually non-challengeable. I am not a lawyer, but that is
what my understanding is.
So this really powerful forensic technology did not develop
by chance. It was the result of careful, thoughtful
collaboration between the law enforcement and the scientific
communities, the two of which aren't always in agreement. And I
think sometimes the law enforcement community wants to keep
things the way they are, and sometimes they are suspicious
about science getting into the area of deciding who is the
victim and who is the perpetrator and all that kind of thing.
But it was the result of a process in which technical
experts developed objective measurements for determining
whether DNA recovered at a crime scene precisely matched a
suspect's DNA. And the word ``match'' is important, because
there are so many words that are used now that can float back
and forth and confuse things.
In a hearing held last year, this committee heard testimony
from a prominent molecular geneticist, Dr. Eric Lander, who in
1989 served as an expert witness in one of the very first
criminal trials to consider DNA evidence. Dr. Lander told us,
during this trial, the scientific experts from the prosecution
and the defense literally kicked the lawyers out--my apologies,
Senator----
[Laughter.]
The Chairman.--so they could discuss the quality and
validity of the DNA evidence, because it was the first shot at
it.
It was discussions like these, led by independent experts,
that eventually turned DNA matching into a scientific process
rather than a matter of subjective professional opinion and
made DNA fingerprinting the gold standard of forensic science
that it is, in fact, today.
Unfortunately, the techniques used in some forensic
disciplines, such as ballistics, bite mark, fingerprint
analysis, et cetera, have not been subject to the rigorous
scientific scrutiny that Dr. Lander and his colleagues applied
to DNA matching. We now know that some of the forensic evidence
presented in courtrooms proved unreliable and contributed to
the wrongful conviction of innocent people.
In 2005, Congress responded to this problem by asking the
National Academy of Sciences to assemble a group of experts
from the law enforcement and scientific communities to take a
hard look at forensic science. Now, both of those communities
were in this study. Four years later, the academy sent us this
book. It was their book-length report, and it is called
``Strengthening Forensic Science in the United States: A Path
Forward.''
Most of the people in this room are familiar with the
findings of this report. They demand action. The report
concluded that a number of the forensic techniques used in our
country today were developed and practiced, ``with little
foundation in scientific theory or analysis.'' The report
called on Congress and the Federal Government to start building
this missing scientific foundation.
While we have not reacted to this challenge as quickly as I
would have hoped, we are beginning to make some progress.
President Obama in his budget requests funding to establish a
new Forensic Science Advisory Committee--there are lots of
advisory committees, but maybe this will be a really important
one--and increases funding for NIST's work--NIST, largely
unknown to most of America but treasured in this room--their
work in forensic science, and proposes to transfer funds from
the Department of Justice to NIST--and my understanding is
there are a few Department of Justice people here; they may not
be entirely happy about that fact, if it comes to be--and the
National Science Foundation to further address this problem. In
other words, a pretty much all-out government assault to try to
get to the basis of the science.
In the next few weeks, I will introduce an updated version
of my bill submitted in the last Congress, which didn't get
anywhere, S. 3378, directing our Federal science agencies to
increase forensic science research and standards development
useful to the law enforcement community.
Promoting truth and justice in our judicial system is a
bipartisan cause, it would seem to me. And I invite all of my
colleagues to look at this subject very carefully and even at
the bill when it comes along.
And I call now on my distinguished, as I call him, co-
Chair, Senator John Thune of the great urban state of South
Dakota.
[Laughter.]
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman. And thanks for
holding this hearing. This hearing, as you said, examines the
state of forensic science and related standards and the
challenges facing the forensic science community.
Popular television shows like ``CSI,'' ``NCIS,'' and ``Law
and Order,'' to name a few which I know the chairman TiVos,
have showcased the role that forensic science can play in
helping law enforcement carry out investigations and convict
criminals. However, these shows can also create the
misimpression that all courtroom evidence that is presented as
scientific evidence has been subjected to high-tech, foolproof
analysis and that every state and local crime lab around the
country has easy access to these sophisticated lab
technologies. Unfortunately, this is not always the case. A
National Academies report issued 4 years ago raised serious
concerns about the state of forensic science and, among other
things, called for structural reforms in new research.
While the forensic science community did not embrace all of
the report's reform recommendations, there seems to be general
agreement that law enforcement, prosecutors, and crime labs
would benefit from greater research and training efforts to
increase crime lab capacity and accuracy and to strengthen the
scientific foundations of forensic science. For instance,
advances in forensic DNA analysis have improved the strength of
evidence that can put criminals behind bars and also clear the
innocent.
However, as we explore ways to improve forensic science, we
must be careful not to undermine or threaten the ability of
local prosecutors and other law enforcement professionals to
prosecute cases by fostering unrealistic expectations that
every case can be solved through science.
We must also avoid unintentionally and undeservedly casting
doubt on the good work that the vast majority of practitioners
perform. Federal efforts to improve forensic science should
utilize input from and be cognizant of the needs of state and
local practitioners in both the forensic and law enforcement
fields.
I would like to hear today about the extent of involvement
of state and local practitioners in the National Commission on
Forensic Science recently established by the administration.
Along those same lines, I would like to hear the witnesses'
views about how to best leverage existing Federal efforts and
longstanding partnerships with state and local forensic
scientists to improve forensic sciences.
I also look forward to hearing your thoughts about what the
National Institute of Standards and Technology, NIST, under
this Committee's jurisdiction, could do to advance forensic
science standards and how the Department of Justice and NIST
could best work together to enhance both public safety and
confidence in our system of justice.
So I look forward to hearing the testimony of our witnesses
today. I would also like to thank all of the witnesses for
being here, some of whom have flown in from across the country
and even from abroad.
So thank you, Mr. Chairman.
The Chairman. Thank you, Senator Thune, very much.
What I would like to do is just have each of you give your
statements. And, incidentally, don't be depressed by looking
around here and not seeing--I mean, the three of us are pretty
good.
[Laughter.]
The Chairman. But there are eight more senators who have
said they are going to be here. And I have them written down
right here, so Senator Thune and I will be observing that list
and those appearances closely.
[Laughter.]
The Chairman. Dr. Tjark Tsin-A-Tsoi is a Ph.D., Chief
Executive Officer of the Netherlands Forensic Institute.
You will be the first to speak, but let me introduce each
of you.
Mr. Michael Bromwich, who is Managing Principal of The
Bromwich Group, LLC; Partner, Goodwin Procter, LLP; former
Inspector General, Department of Justice.
Dr. Gregory Schmunk, President, National Association of
Medical Examiners, Chief Medical Examiner.
And Ms. Jill Spriggs, Secretary, Consortium of Forensic
Science Organizations; Laboratory Director, Office of the
District Attorney, Sacramento County Laboratory of Forensic
Services.
So, Doctor, if you wish to go ahead, please do so.
Well, you are all doctors.
[Laughter.]
The Chairman. You, sir.
STATEMENT OF DR. T. (TJARK) B.P.M. TJIN-A-TSOI, CHIEF EXECUTIVE
OFFICER, NETHERLANDS FORENSIC INSTITUTE
Mr. Tjin-A-Tsoi. Good afternoon, Chairman Rockefeller and
Ranking Member Thune and members of the Committee. It is an
honor for me, as Chief Executive Officer of the Netherlands
Forensic Institute, to be invited here to testify before your
committee on the important topic of forensic sciences.
New science and technology are transforming the
capabilities of forensic laboratories. As a result of this,
forensic science is changing from having a supporting role to
becoming a playmaker in criminal investigations and security.
The promise of forensic science is that it will
increasingly enable quick and reliable reconstructions of
events, as well as the identification of subjects, through
scientifically validated means. Furthermore, it will do so in a
relatively cost-effective way, with minimal impact on innocent
civilians.
As such, forensic sciences are set to play a role similar
to chemistry and biology in health care and automation in
manufacturing. However, in order to live up to that promise,
the sector still has some challenges to overcome. These
challenges are a result of the way forensic science and crime
labs have developed over the years.
An important challenge concerns the scientific validity of
the methods used by forensic scientists to interpret evidence,
as was discussed in the 2009 National Academy of Sciences
report.
Scientific research is essential to strengthen the
objectivity of forensic interpretations and to determine the
strengths and limitations of forensic methods. This is the
background of the MOU the National Institutes of Standards and
Technology and the Netherlands Forensics Institute signed in
November 2012.
Furthermore, through scientific research, the sector can
move toward more integrated, interdisciplinary information
services aimed not only at identifying the source of traces but
also at reconstructing the human events that led up to them,
the human activities that led up to them.
The second challenge concerns the strong technology-driven
growth of the forensic sector during the past 2 decades, even
in jurisdictions where the crime rate has been falling.
Forensic sciences are increasingly becoming mission-critical
from the point of view of end-users. Nevertheless, the forensic
community and its stakeholders have been struggling to deal
with this, essentially, very good success.
In the absence of adequate mechanisms to coordinate supply
and demand and in view of a somewhat reserved attitude in the
sector toward professionalization of governance and process
management, demand growth has resulted in backlogs and long
delivery times in many labs around the world. These backlogs
stand in the way of delivering the full value of forensic
sciences to users and obstruct the scientific development of
the field as a whole.
The Netherlands Forensic Institute, which is an independent
and not-for-profit government agency with approximately 650
employees, was facing the same problem 6 years ago. The policy
paper that is in your possession describes the journey of the
NFI over the past 6 years. In this period, the NFI changed its
governance and business model, which involved shaping a more
realistic and businesslike relationship with its end-users and
other stakeholders.
These changes have resulted in the elimination of the
entire backlog of 18,000 cases, a reduction of the average
delivery time of more than 90 percent, and customer
satisfaction levels that are now comparable to the private
sector. As the weight of backlogs was lifted, the ability to
initiate research and development programs was enhanced, as
well.
Even though some of these changes initially went against
the grain of the stakeholder network in which forensic
laboratories operate, in the end the results were welcomed
universally.
Finally, I would like to discuss a topic that is related to
all the aforementioned issues. It concerns the organizational
fragmentation of forensic infrastructure. Not only is there
much to be gained if the dozens of different fields of
expertise were to cooperate more intensively, the
organizational structure of the sector is such that there is a
large number of relatively small and local labs that are
managed separately.
Fragmentation tends to have the effect that economy of
scale and scope are not achieved and renders expensive R&D
programs impossible due to the absence of critical mass.
Furthermore, it often gives rise to problems relating to
flexibility and continuity. Partly because of this, most
forensic laboratories around the world operate like pure
production units, even though they have the knowledge and the
customer exposure that could propel forensic sciences forward.
For that reason, consolidation, specialization, or more
formalized cooperation agreements could be considered in order
for the field to utilize its full potential and develop new
capabilities.
Thank you for your attention, and I am happy to answer any
questions you might have.
[The prepared statement of Mr. Tjin-A-Tsoi follows:]
Prepared Statement of Dr. T. (Tjark) B.P.M. Tjin-A-Tsoi, Chief
Executive Officer, Netherlands Forensic Institute
Good afternoon Chairman Rockefeller, Ranking Member Thune and
members of the Committee. It is an honor for me, as Chief Executive
Officer of the Netherlands Forensic Institute, to be invited here to
testify before your committee on the important topic of forensic
sciences.
New science and technology are transforming the capabilities of
forensic laboratories. As a result of this, forensic science is
changing from having a supporting role to becoming a playmaker in
criminal investigations and security. The promise of forensic sciences
is that it will increasingly enable quick and reliable reconstructions
of events, as well as the identification of suspects, through
scientifically validated means. Furthermore, it will do so in a
relatively cost effective way, with minimal impact on innocent
civilians.
As such, forensic sciences are set to play a role similar to
chemistry and biology in health care, and automation in manufacturing.
However, in order to live up to that promise, the sector still has
some challenges to overcome. These challenges are a result of the way
forensic sciences and crime labs have developed over the years.
An important challenge concerns the scientific validity of the
methods used by forensic scientists to interpret evidence, as was
discussed in a well-known 2009 National Academy of Sciences report.
Scientific research is essential to strengthen the objectivity of
forensic interpretations and to determine the strengths and limitations
of forensic methods. This is the background of the Memorandum of
Understanding (MoU) the National Institute of Standards and Technology
and the Netherlands Forensic Institute signed in November 2012.
Furthermore, through scientific research, the sector can move
towards more integrated and interdisciplinary information services,
aimed not only at identifying the source of traces but also at
reconstructing the human activities that led up to them.
The second challenge concerns the strong technology driven growth
of the forensic sector during the past two decades, even in
jurisdictions where crime rates have been falling. Forensic sciences
are increasingly becoming mission critical from the point of view of
end users. Nevertheless, the forensic community and its stakeholders
have struggled to deal with what is essentially an enormous success. In
the absence of adequate mechanisms to coordinate supply and demand, and
in view of a somewhat reserved attitude in the sector towards
professionalization of governance and process management, demand growth
has resulted in backlogs and long delivery times in many labs around
the world. These backlogs stand in the way of delivering the full value
of forensic sciences to users, and obstruct the scientific development
of the field as a whole.
The Netherlands Forensic Institute, which is an independent and
not-for-profit government agency with approximately 650 employees, was
facing the same problems six years ago. The policy paper that is in
your possession describes the journey of the NFI over the past six
years. In this period the NFI changed its governance and business
model, which involved shaping a more realistic and businesslike
relationship with its end users and other stakeholders. These changes
have resulted in the elimination of the entire backlog of 18,000 cases,
a reduction of the average delivery time by over 90 percent, and
customer satisfaction levels that are now comparable to the private
sector. As the weight of backlogs was lifted, the ability to initiate
research and development programs was enhanced as well.
Even though some of the changes initially went against the grain of
the stakeholder network in which forensic laboratories operate, in the
end the results were welcomed universally.
Finally, I would like to discuss a topic that is related to all the
aforementioned issues. It concerns the organizational fragmentation of
the forensic infrastructure. Not only is there much to be gained if the
dozens of different fields of expertise were to cooperate more
intensively, the organizational structure of the sector is such that
there is a large number of relatively small and local labs, that are
managed separately. Fragmentation tends to have the effect that economy
of scale and scope are not achieved, and renders expensive R&D programs
impossible due to the absence of critical mass. Furthermore, it often
gives rise to problems relating to flexibility and continuity. Partly
because of this, most forensic laboratories around the world operate
like pure production units, even though they have the knowledge and
customer exposure that could propel forensic sciences forward. For that
reason, consolidation, specialization, or more formalized cooperation
arrangements could be considered, in order for the field to utilize its
full potential and develop new capabilities.
Thank you for your attention and I am happy to answer any questions
you might have.
______
March 2013
Trends, Challenges and Strategy in the Forensic Science Sector
Dr. T.B.P.M. Tjin-A-Tsoi, Chief Executive Officer, Netherlands Forensic
Institute \1\
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\1\ The Netherlands Forensic Institute is an independent and not-
for-profit government agency. It is part of the Ministry of Security
and Justice.
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Introduction
The forensic science sector is in transition. New insights,
technologies, and customers, combined with falling costs and increasing
capabilities cause the sector to grow rapidly. As a consequence the
role of forensic laboratories is changing. Today's laboratories are
able to investigate more and a greater variety of traces, and to
extract more information from less material, than ever before. Forensic
IT \2\ has opened a completely new category of investigation, as
specialists explore digital traces on information carriers such as cell
phones, laptops, and car computers. Meanwhile, advances in the study of
DNA have made it possible to investigate minute traces and even provide
information on the physical characteristics of the donor. In addition,
all this information can now be produced more quickly than was ever
thought possible. Due to these developments, rapid and well-founded
reconstructions of events based on trace patterns found at crime scenes
are becoming a tantalizing possibility. And these advantages come at a
lower cost than many conventional investigative techniques.
---------------------------------------------------------------------------
\2\ Forensic Information Technology
---------------------------------------------------------------------------
As a result, the role of forensic science is changing. Whereas
before, it was cast in a supporting role, it is now set to become the
playmaker in many types of investigation, providing quick and reliable
information on scenarios and suspects and thus, in a sense, directing
the efforts of investigators. At the same time, forensics is changing
from a profession in which individual experience and expertise of
practitioners play a dominant role to one where skilled knowledge
workers are integrated in an increasingly complex infrastructure of
empirical science and cutting-edge technology.
Taking advantage of these developments to achieve the full
potential of the forensic sector will naturally require some
adjustment. Despite the sector's rapid growth in recent years, its
structure remains largely unchanged. With more than 400 forensic
laboratories in the U.S. alone and a somewhat smaller, but still very
large, number in Europe, it is a rather fragmented field. Most of these
laboratories are primarily production units that lack sufficient mass
or funding to conduct research, or to develop innovative products and
services. Furthermore, this lack of critical mass creates major
organizational vulnerabilities, which are in part responsible for the
backlogs that haunt many forensic laboratories.
This paper presents an overview, from the standpoint of the
Netherlands Forensic Institute (NFI), of some of the trends and
pressures that will affect the structure and governance of the sector
today and in the years to come. The paper also outlines a way forward,
based on measures that the NFI has itself taken to address these
challenges.
1. Growth--one of the main trends in forensics today
One of the clearest and most important trends in forensics is its
remarkable growth over the past 15 years. At the NFI, the number of
cases handled per year is now six times what it was in 2000. In fact,
the caseload has grown more in the past 15 years than in the previous
50. In the same period, the NFI's workforce has nearly tripled, growing
from about 200 to 600 people. This is clearly part of a larger trend,
with caseloads growing steadily at forensic laboratories around the
world. Although the recent budget cuts and the economic downturn may
temporarily slow the growth of the forensic sector, the fundamental
drivers of change persist and will continue to assert themselves.
Factors driving growth
The growth in forensics has been driven by three main factors: (1)
the introduction of new technological capabilities, (2) increased
general awareness among customers regarding the value and efficiency of
forensic science, and (3) the advent of new types of customers from
outside the scope of traditional forensics. Let us look at these
factors in turn.
New technological capabilities
Much of the recent growth in forensics has resulted from the
introduction of new technologies, most notably high-tech biometrics
(predominantly forensic DNA), forensic information technology (IT), and
forensic chemistry. Just twenty years ago, the first two of these
disciplines were not practiced at the NFI; today, they are the largest
and fastest growing disciplines at the Institute.
That these new technologies should lead to growth is not
surprising. When any new investigative technique is introduced, the
pressure to put it into practice quickly increases. Of course, in
forensics--as in other fields (e.g., health care)--ethical and quality
issues may need to be resolved before a new technique can be used.
Otherwise, if it provides valuable information, there will be a strong
demand for it to be used immediately and on a wide scale. Since, in
this way, any new scientific insight or technology creates its own
demand, forensic innovations are likely to continue to spur growth in
the field.
It is significant that the three disciplines mentioned above
(forensic DNA, IT, and chemistry) do not simply add new and refined
technological capabilities to the forensics toolbox. They also address
new classes of trace evidence--classes that previously may not have
been collected and analyzed. This applies both to biometrics and to
forensic IT, but the discipline of forensic IT is particularly
significant in this context, as it opens up a whole new world of trace
evidence. Today, it is almost impossible to prevent leaving digital
traces--in cell phones, on computers, on the Internet, in digital
surveillance cameras, in an ATM, in a navigation system, in a car's on-
board computer, and so on. People have a symbiotic relationship with
both the physical and the digital world. This has profound consequences
for forensics, because everything we do leaves a trace in these worlds.
It will therefore become increasingly important that forensic service
providers be able to retrieve relevant data from all available digital
sources and to analyze these intelligently.
Of course, additional growth is also generated through the
continuous improvement of existing technologies. As they become more
sensitive, the amount of relevant information that can be retrieved
from traces will increase, as will the number of traces that can be
analyzed in the first place. For example, 15 years ago, a relatively
large sample was needed for reliable forensic DNA analysis. Today,
forensic laboratories need just a fraction of that: often no more than
50 picograms. Traces that in the past would have yielded no relevant
information can now change the course of an investigation.
Moreover, advances in technology mean that forensic laboratories
are able to do much more with the same resources (in money terms) than
before--so that the value of the laboratory as a whole has increased
significantly.
Greater awareness of the value, efficiency and potential of forensics
The use of forensic investigations has increased not only due to
the advent of new technologies but also due to an increased awareness
of what forensics has to offer. Existing and potential end-users, the
press and the public are all more aware today of the extent of forensic
capabilities. This, in turn, is generating an increasing demand.
Forensic investigation is gradually assuming a more central and high-
profile role, and is becoming an essential tool for law enforcement,
homeland defense, and others entrusted with maintaining justice, social
order and security. Increasingly, court cases depend on DNA evidence,
security and terrorism threats are being prevented on the basis of
digital traces, and a wide variety of investigators are taking an
interest in what forensics has to offer them.
Historically, forensic science has served primarily as the tool of
prosecutors in preparation for trial, not necessarily as a tool of
investigators. With the advent of faster methods and forensic databases
(DNA, fingerprints, firearms, etc.) over the past several decades,
forensic science is becoming an invaluable tool in criminal
investigations and intelligence, even before a suspect has been
identified. For example, investigators can now compare questioned
traces collected from crime scenes or victims with large database pools
of known perpetrators, frequently leading to the identification of
suspects who would otherwise remain unknown.
As users become more aware of the benefits of the new tools and
expertise available, they see new ways to use forensic science. For
example, the police are under great pressure to apprehend criminals
while at the same time ruling out innocent civilians as suspects.
Forensics can help them meet that need by providing reliable
information through technical means (i.e., without harassing innocent
citizens). This increased awareness of what advanced forensics has to
offer is leading to increased demand on the part of traditional
customers of forensics laboratories.
New customers
The capabilities of forensic service providers have not passed
unnoticed in domains outside of criminal justice and law enforcement.
In fact, a wide range of governmental organizations--involved in
everything from defense and intelligence to administrative law and
regulatory oversight--are using forensics in their investigations. This
new demand for forensic science is a main driver of growth in the
sector as a whole. Nevertheless, not many traditional crime labs are
taking advantage of this fact.
Of course, new customers have different needs from those within the
criminal justice system (police, prosecutors and the judiciary). For
example, the type of information required and the balance between speed
and accuracy may be quite different. Accordingly, in recent years, many
of these organizations have created their own specialized forensic
units and, in some organizations, their own databases. However, these
units are often small and somewhat disconnected from the wider forensic
community. This has increased the fragmentation of the forensics sector
as a whole, and has occasionally resulted in some organizations
``reinventing the wheel.'' Nonetheless, these changes also represent an
opportunity for the forensic sector. Serving a broader customer base
not only reduces organizational vulnerability, but can also give rise
to improved services at lower costs through economies of scale. The
atypical requirements of new types of customers stimulate innovation
and drive the development of new knowledge, which will ultimately
benefit all customers.
As a result of these shifts, a new outlook of the forensic
community is emerging. It no longer solely provides forensic services
in the fields of law enforcement and criminal justice. Forensic
institutes become first and foremost high-tech knowledge hubs, filled
with knowledge workers who deliver their services to the (mostly
government) agencies that may require these and who enrich the hub in
the process. At the NFI, this process could be observed at first hand:
by serving non-traditional customers, inside and outside of the
Netherlands in 17 countries (at the time of writing), the organization
has acquired capabilities and experience that it would not otherwise
have been able to obtain, and that are now also available to
``traditional'' customers. As knowledge hubs, forensic institutes
become more valuable if they enlarge the network to which they belong
and in which the operate.
Non-traditional customers include ministries of defense,
municipalities, intelligence agencies, benefit and tax fraud
investigators, the financial market regulator, transport safety boards,
competition authorities, and international bodies, such as the
international tribunals and criminal courts, but also Europol,
Interpol, the IAEA, and the United Nations.
2. Customer focus
The current heightened awareness of forensic science, together with
the recognition of its value, means that users and customers not only
make greater use of it, but also place greater reliance on it. In
short, forensics has moved from occupying a supporting--almost behind-
the-scenes--role to becoming a key protagonist. It has, for many users,
become ``mission critical.'' As a result, customers are becoming
increasingly demanding, subjecting what they receive from their
suppliers to ever-closer scrutiny. Consequently, suppliers will need to
pay much more attention to their customers' needs.
Identifying customers' primary needs
Forensic laboratories supply their customers with ``value-added''
information--specifically, about past events and behaviors, as well as
about the individuals involved in these events. This information is
obtained from the traces that resulted from these events and behaviors.
All customers want the supplier laboratory to provide as much relevant
information from available traces as possible, and they want the
information to be reliable and objective. They do not want the
information to depend on the particular forensic investigator handling
the case; and, if necessary, they want the forensic investigators to be
able to show a solid scientific basis for their conclusions.
Customers also want the laboratory to be able to handle as many
trace investigations as possible, because in general (though not
always) a larger number of trace investigations yields more
information. It also reduces the risk, down the line, that police
investigators or prosecutors will be criticized for failing to order
trace investigations that are potentially exculpatory, or for failing
to do everything possible to apprehend the criminals. When forensic
laboratories have a fixed budget, the drive to increase the total
output of the laboratory implies that the average cost per
investigation has to be reduced.
To most customers of forensic laboratories, receiving the results
of the forensic investigation as quickly as possible is extremely
important. This is especially true in the intelligence gathering and
investigation phases, when time is of the essence. After a crime has
been committed, the first 48 hours are often critical in the
investigation. In the intelligence phase, being able to analyze traces
quickly and reliably can mean the difference between being able to
prevent a crime (such as a terrorist attack) or not. The value and
impact of forensics increase greatly when results can be delivered
quickly.
In other words, the primary needs of the customer can be summarized
as follows: more, better, faster, cheaper. In fact, ``more'',
``faster'' and ``cheaper'' are highly correlated from an organizational
and governance point of view, as will be discussed below. The forensic
community has historically paid less passionate attention to these
customer needs than to the technical content of the forensic trades and
the individual skills of the practitioners. In most cases, the costs of
individual forensic investigations are not considered at all, either
directly or indirectly. Many forensic investigators, laboratory
directors, and even customers, actually resist the idea that costs
should play any role in the decision-making process before committing
to forensic investigations. The implicit belief seems to be that one
cannot and should not let financial considerations play such a key role
when important societal issues (such as apprehending a criminal and
dispensing justice) are at stake. However, since open-ended financial
arrangements are an illusion, the practical results of this way of
thinking are backlogs, stagnation, and a far-from-optimal--even
unknowing--allocation of scarce resources.
All this is changing, however, and will continue to change due to
the increasing reliance on forensic investigations and the pressure
this puts on forensic laboratories. The same can be said about the
drive to increase the information value extracted from traces, as well
as the scientific basis and objectivity of forensic conclusions. Both
require focused and customer-oriented research and development.
However, at the moment, partly because of the arts-and-crafts culture
of the forensic field, and partly because of the fragmented structure
of the sector (see the previous section), there is a lack of R&D of
this type.
Achieving more, better, and more valuable information
Forensic laboratories can increase the value of the information
they provide in at least three ways. The first is by increasing
reliability by strengthening objectivity and scientific underpinning.
The second is by providing more information at ``activity'' level,
i.e., information that reveals how traces fit together in larger
patterns of crime related activity. Finally, laboratories can enhance
the information they offer by developing tools and methods that bring
to light traces that have hitherto been unavailable because they are
imperceptible to the human senses.
Improving scientific underpinning--Up to just a few decades ago,
forensic science had more in common with a collection of arts and
crafts than with a mature science. In some areas, forensics is
essentially still in the pre-scientific era, a fact reflected in the
observation by the National Academy of Sciences (NAS) that some
forensic disciplines lack a scientific basis.\3\ Clearly, if the
interpretations made by forensic scientists are not objective or lack a
strong scientific underpinning, the value of the information and
interpretations forensic labs provide is diminished. The arts-and-
crafts culture, the small scale of most forensic laboratories, and the
high pressure on throughput, have had the result that the scientific
and technological development of the field have not been as rapid as it
could have been. In addition, knowledge is often not shared and
managed, but resides with skilled, individual practitioners. In
essence, these professionals become their own measuring instruments,
and the database from which they operate and evaluate forensic evidence
is based on personal experience. Consequently, interpretations are more
subjective than is often realized. To a certain extent, this is
probably unavoidable, but it would be too easy to say that it is
entirely unavoidable. With empirical scientific research, it should be
possible to strengthen the scientific basis of many forensic
disciplines.
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\3\ Strengthening Forensic Science in the United States: A Path
Forward, NAS, 2009: ``The simple reality is that the interpretation of
evidence is not always based on scientific studies to determine its
validity. This is a serious problem. Although research has been done in
some disciplines, there is a notable dearth of peer-reviewed, published
studies establishing the scientific bases and validity of many forensic
methods'' . . . ``The fact is that many forensic tests have never been
exposed to stringent scientific scrutiny. Most of these techniques were
developed in crime laboratories to aid the investigation of evidence
from a particular crime scene, and researching their limitations and
foundations was never a top priority.''
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Providing activity-level information--A second way in which
laboratories can increase the value of the information they deliver is
to provide customers with more information at ``activity'' level. Many
forensic laboratories restrict themselves to ``source level''
investigations, focusing on the origin and composition of a given
trace. However, from the point of view of the customer, it is also
important how and when the trace was made; i.e., what events transpired
to leave a certain trace (or pattern of traces). In the case of DNA and
latent fingerprints found at a crime scene, for instance, it would be
useful to know not only to whom the DNA or latent fingerprints belong,
but also what activity led to the evidence being deposited there. Was
it an activity related to the crime, or was it entirely unrelated? So
far, relatively little research has been carried out to increase the
capabilities of forensic investigations at activity level. In those
cases where forensic practitioners have included some analysis at
activity level in their reports, it is often based on the
practitioner's particular experience, rather than any empirical
scientific research. However, the added value provided by activity-
level information suggests that such research is highly desirable. It
is, however, expensive, time-consuming, and requires substantial case-
loads to be able to create the necessary empirical databases. Critical
mass and cooperation among laboratories are both essential in this
regard.
Detecting, recording, and retrieving minute traces--A third way in
which laboratories can increase the value of the information they
provide to customers is to gain access to traces left at the crime
scene that are currently too small to detect with the human senses.
Detecting such traces is becoming a new ``holy grail'' of forensics.
Although it is currently possible to investigate such minute traces in
the laboratory, it is still impossible (within a reasonable timeframe)
to detect, register and represent all these important traces not merely
in isolation but also in the three-dimensional patterns in which they
occur at the crime scene. It may be possible to investigate 50
picograms of cell material containing DNA in the laboratory, but how
does one find such small quantities at a crime scene? This is certainly
an important R&D challenge. (Incidentally, it should be noted that the
growing numbers of traces that will become available in this way make
it all the more important that forensic laboratories take steps to
increase their efficiency and productivity, because increased numbers
of traces will steadily increase the caseload: see below.)
Shortening delivery times
As was discussed above, quick delivery is one of the most important
needs that customers of forensic laboratories articulate. In fact, as
forensic investigations are increasingly becoming ``mission critical''
to customers, forensic laboratories have to reconcile themselves to the
fact that customers--if given the choice--would like the results
immediately. This does not mean that customers in all circumstances
need the results immediately, or that they are always in a position to
act on the information the moment it is provided. However, regardless
of how fast investigators are able to act on the laboratory's results,
it is a laudable goal for forensic laboratories to reduce the odds of
being the choke point in the critical path of criminal investigations.
Furthermore, suppliers (forensic laboratories in this case) usually do
not have all the information necessary to determine what is important
to the customer, and there may be subjective or even emotional (but not
necessarily irrelevant) reasons why customers want fast delivery.
However, historically the sense of urgency felt by customers regarding
fast delivery was not always shared fully by the forensic community.
The NFI was no exception. However, as will be discussed below, the
problem is not caused exclusively by a lack of focus on speed by
forensic laboratories. It is also caused by the institutional
arrangements and financing structures in which the forensic sector
operates.
There are at least three ways in which delivery times can be
shortened: by solving the backlog problem; by improving process
management; and by creating new, faster technologies.
The backlog problem--Two factors that have a significant impact on
the caseload of forensic laboratories are the crime rate and the
scientific and technological capabilities of the laboratories. The way
in which the crime rate impacts forensic laboratories is similar to the
way it influences the broader law enforcement community. However, the
impact of scientific progress and technological innovation is far more
complicated, and clearly sets forensic labs apart from their main
customers. Advances in forensic technology tend to increase the
caseload of laboratories--sometimes dramatically--even when the crime
rate is going down. Conversely, to some extent powerful forensic
techniques replace more ``traditional'' and time-consuming
investigative methods, or at a minimum can provide more focus to a
criminal investigation. These phenomena could be clearly observed in
The Netherlands, where the crime rate has gone down in the past decade,
while the number of cases the NFI handles has increased by a factor of
six. This increase is almost exclusively confined to the forensic
fields that have experienced significant technological advances. The
largest increase in demand has been witnessed in forensic DNA analysis,
forensic IT, and forensic chemistry. However, more recently,
technological and scientific advances in other fields--such as new
fingermark detection methods and the evaluation of partial
fingermarks--have also had the effect of greatly increasing the demand
in these fields. As soon as new, powerful and validated forensic
techniques become available, customers want to use them in their
criminal investigations.
These ``technology-driven'' demand shocks, during which the demand
for certain forensic services increases quickly, are often not
adequately factored into the budgetary models used to allocate
resources to the different entities within the law enforcement
community (if such models exist at all). Forensic laboratories are
usually not paid for the amount of work they are commissioned to do
(the demand), but are instead given a fixed budget that is supposed to
cover all the work sent to them. An increase in demand caused, for
example, by an innovative forensic method, does not automatically lead
to a commensurate increase in financing, which could then be invested
to create additional production capacity. Conversely, demand is not
tempered by a ``fee'', and most labs do not have production agreements
(i.e., Service Level Agreements) with their customers, limiting the
amount of work that can be commissioned. Forensic investigations cost
money--sometimes a lot of money--but the parties commissioning these
investigations are often not conscious of this fact. For them, the
forensic investigations are ``free'', and they behave as if there are
no budgetary or capacity constraints. This is the double-edged sword
that has created backlogs all over the world. Due to the existing
institutional arrangements and funding structures, budgets are not
adjusted quickly enough when demand shocks present themselves, and
customers are not disciplined by any kind of fee structure, or
production agreements, that signal to them that forensic investigations
cost money and that resources are limited. The inevitable result of
this is a backlog. The fields that are hardest hit are often those that
are most dynamic and that show the most scientific and technological
progress. The huge DNA backlogs in many forensic laboratories around
the world are an illustration of this phenomenon.
When resources are limited, as is invariably the case,
prioritization becomes a necessity. However, the fact that forensic
services are treated as if they were ``free of charge'' robs customers
of the opportunity to evaluate costs versus potential benefits, given
the fact that resources are limited. The inevitable result is that
scarce resources are not being used in the most efficient and effective
way, and significant waste is occurring even as backlogs pile up.
Some may object (for a variety of reasons) to any notion of
``charging'' for forensic investigations. This is perhaps in part
because they fear commercialization. However, what is being discussed
here is not some sort of commercialization scheme, but rather a more
efficient allocation method, i.e., one that prevents backlogs and
waste, and leads to more informed and conscious prioritization
mechanisms. It requires a repudiation of the double illusion that
forensic investigations cost nothing and that forensic laboratories
have unlimited capacity. It does not necessitate the establishment of
any for-profit entity. Indeed, given the large number of cases that
pass through forensic laboratories each month, it is neither practical
nor necessary for them to start sending out bills for every
investigation completed. This would create a huge and undesirable
bureaucracy between agencies. An easier way--and one that has been
implemented at the NFI--is to reach an annual agreement with the main
customers on the number of forensic services (of different types) that
the laboratory will deliver during the following year. The total
``fee'' of these SLAs is then equal to the agreed budget for the
laboratory. Any additional work is fee based and requires separate
agreements.\4\
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\4\ For jurisdictions in which the implementation of fee structures
is simply not an available option, the creation of service level
agreements can still be one of the most effective ways to manage supply
and demand. Nevertheless, in order to link service levels (supply) and
budgets, one still needs a way to calculate the cost of the services
delivered.
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Improving process management--Historically, the field of forensic
science is a collection of communities of craftsmen and highly educated
experts in a large number of different fields. Forensic laboratories
often contain many different forensic disciplines (more than 30 at the
NFI) and sometimes tend to resemble a collection of fiefdoms. Deep
interdisciplinary cooperation is relatively rare, and individualism is
an often-dysfunctional part of the culture. Practitioners in the field
of forensic science are highly committed, closely focused on the
content and quality of their work and, in general, not particularly
interested in process management, efficiency, delivery times, costs, or
other matters of this nature. Because of this, process optimization has
been somewhat neglected, resulting in practices that are often less
efficient than they should be.
By applying modern process redesign methods, spectacular progress
can be made towards faster delivery times, higher productivity, and
lower costs. Process redesign can also help with backlog reduction.
Many of these methods are data-driven and quantitative, which means
that natural scientists and engineers can relate to the methodology. To
restructure and improve the processes at the NFI, the methodology known
as ``Lean Six Sigma'' \5\ has been introduced. A large number of
employees (up to a third of the total workforce) were trained in basic
or advanced process redesign skills, so that process management became
part of the culture and vocabulary of the organization, rather than an
unpopular instrument imposed by management.
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\5\ Michael L. George, Lean Six Sigma: Combining Six Sigma Quality
with Lean Speed, McGraw-Hill Osbourne Media, 2002
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Creating faster technologies--Many forensic laboratories are not
active in R&D or product development, while those that are tend to
focus on exploring scientific matters or improving existing techniques.
R&D specifically aimed at faster production is relatively rare.
Nevertheless, significant gains can be made by refocusing R&D more
closely on techniques and methods that will accelerate processing.
Experiences at the NFI
Like many other forensic institutes around the world, the NFI used
to have a significant backlog problem. However, the organization has
now successfully implemented a number of the measures described above,
with the result that the backlog has been eliminated. The following
section describes three of these measures in more detail: introducing
Service Level Agreements (SLAs) with customers; process redesign to
streamline production; and refocusing R&D activities to focus on speed.
Introducing SLAs with customers
The first strategic measure implemented by the NFI was to introduce
an annual SLA with its two main customers (the police and the
prosecution service). This is a formal document defining the working
relationship between the NFI and the customer, and specifying the
number of investigations the NFI will carry out for that specific
customer over a period of one year.
An important advantage of an SLA is that it forces customers to
prioritize. Some people in the field implicitly believe that
prioritizing among investigations is unethical, as being somehow
incompatible with the notion that Justice should be blind.
Nevertheless, even if justice is blind and all cases are equally
important, the same cannot be said of forensic investigations if they
are considered in the specific contexts of the cases in which they
arise. A forensic investigation that is crucial in case A may be
unnecessary in case B. Furthermore, the fact remains that the capacity
of a forensic laboratory is limited, and any work that is assigned
beyond that level will, under a ``no-prioritization policy'', simply
increase the backlog and extend delivery times. In practice, it is
impossible to avoid prioritization: if the customer does not do so
explicitly, it will be done implicitly and therefore ad hoc. Work will
be de facto prioritized on the basis of ``first come, first served''.
From the point of view of the public good and society's needs, this is
surely a situation that is far from ideal.
The SLA makes it clear that resources are limited, and that
intelligent prioritization is required. Prioritization of
investigations is the responsibility of the customer, as the customer
is naturally most familiar with the various cases and the relative
urgency of the forensic investigations being considered. In practice,
this is performed, when necessary, by liaison officers of the main
customers. The step from capacity to budgets is made by modern cost
accounting methods, such as Activity-Based Costing, which allows the
organization to calculate the costs of individual investigations. In
the Netherlands, the total ``fee'' for the work specified in the SLA is
paid by the Dutch Ministry of Security and Justice, which also owns the
NFI.
The SLA, which is ``renegotiated'' annually, prevents the
accumulation of a backlog, and gives the customer an opportunity to
stipulate requirements regarding important issues such as quality,
logistics, and communication. This mutual formalization of the
relationship gives both parties a better understanding of what is
required, what they can expect and what is attainable. At first there
was considerable pushback regarding the idea of introducing an SLA.
However, once the logic was internalized and the advantages became
apparent, it became an accepted and valuable instrument to improve a
system that had created a backlog of 18,000 cases, and which had led to
many instances of friction because of unclear mutual expectations.
Customers whose investigations are not paid for by the Ministry of
Security and Justice pay a fee for the products or services they
require. Furthermore, if the police or the prosecution request more
investigations than are covered by the SLA, they pay for the additional
work out of their own funds. The extra revenue that the NFI generates
in this way is transparently re-invested in additional capacity and
R&D. In this way, a strong link between supply (capacity) and demand is
maintained.
Streamlining production through process redesign
The second strategic measure introduced was a determined effort to
improve process management at the NFI. As mentioned above, the Lean Six
Sigma methodology was borrowed from industry and applied to eliminate
waste of various kinds, including lost hours in the production
processes. This made it possible to identify the variables that are
critical to achieving the required speed and quality. Based on insights
from this methodology, the NFI redesigned its processes, eliminating
waiting time and economizing wherever possible to promote efficiency
and speed.
The first step was to redesign processes to reduce ``dead time''--
i.e., time that a case spends at the NFI but during which it is not
being processed in any way. Rigorous analysis of every group at the NFI
showed that the time spent conducting investigations was only a
fraction of total delivery time. Throughout the remaining period, the
investigation was simply in a state of suspended animation, waiting for
the next step in the process to begin.
At first, there was some pushback to the effort to redesign the
production processes at the NFI. Some professionals tend to distrust or
even resent the idea of process management. Motivated by their
profession and the content of their work, they fear that shortening
delivery times will have a negative effect on quality. However, as the
primary focus was on eliminating ``dead time'', no credible argument
could be made that process redesign would have a negative effect on
quality. And in fact, no such effect was observed.
Another concern was that process redesign would turn highly
qualified employees into ``assets'' on a production line, who would
carry out a limited set of standard tasks. In some cases, this may be a
result of process redesign--especially when standardization is the
solution to a particular problem. The current culture in many
laboratories of journeymen forensic scientists involves taking cases
sequentially ``from crime scene all the way to the courtroom''. In many
cases this model is highly inefficient and unnecessary. Often the
efficiency and throughput can be increased markedly by introducing a
division of labor and some type of ``assembly line'' operations. Not
all processes can be restructured in this way, but many can. Some
forensic scientists may be concerned that a division of labor will make
their work less interesting, or that they will not be able to control
the (quality of the) whole process personally. The claim that quality
necessarily suffers from this type of process redesign is unjustified.
Nonetheless, a division of labor does have an impact on the way people
work and on the content of their work. In some cases, job descriptions
need to be reconciled with the appropriate level of education and
qualifications required for the new jobs. Ph.D.'s are not required for
conducting some of the jobs with highly standardized or repetitive
tasks. Failure to redesign the processes could result in failure to
achieve the appropriate efficiencies, which is not a realistic option
in the long run, but failure to redefine the job descriptions could
demoralize highly qualified forensic scientists because of a mismatch
between expectations and requirements.
Refocusing R&D
The third strategic measure taken by the NFI to combat backlogs and
long delivery times was to refocus its R&D efforts on finding
innovative ways of increasing the speed of forensic processes. The NFI
examined its own activities in R&D and concluded that these activities
lacked a clear focus. Even though delivery times were the main concern
of the customers, almost none of the R&D projects in the organization
were aimed at creating technologies or methods to shorten them.
Clearly, this had to change.
Looking at the whole range of R&D activities relating to forensics,
three main categories could be discerned: basic research, applied
research and product development. From the NFI's point of view, it was
considered that basic research activities were best pursued in
cooperation with universities and other partners, or left to them
entirely. The NFI has been instrumental in setting up such a pure
research program in The Netherlands, funded by the national science
foundation (NWO).\6\ Furthermore, we believe that improvement of the
scientific underpinning and objectivity of forensic investigations
would clearly benefit from a larger-scale, international effort. For
this reason, the NFI has been seeking partners abroad, particularly in
Europe and the United States.
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\6\ NWO is the Netherlands Organization for Scientific Research
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The type of R&D that could most fruitfully be pursued by the NFI
and other forensic service providers was the development of products
and services, as this would fit in well with its chosen focus on
customer needs. To guide innovation in this area, the NFI adopted the
concepts of ``Co-creation'' and ``Lean Innovation.'' These methods
stress intensive cooperation and interaction between customer and
provider in the innovation process. In this way, the R&D process is
steered towards the innovations with the highest value for the
customer. An example of a service that the NFI developed in this way
was ``DNA 6 hours.'' Inspired by the customer's need for speed in the
delivery of results, this methodology guarantees that the customer
receives a report on a crime scene DNA sample, including the results of
a comparison with the DNA database, within 6 hours. In practice,
however, the turnaround time is generally much shorter, at
approximately 3.5 hours. Taking this idea further, the NFI has also
introduced a ``sprint portfolio'': a set of very fast versions of the
usual services provided by the NFI.
Results
Implementation of these three strategic measures has resulted in
the elimination of the 2007 backlog of 18,000 cases (approximately
70,000 forensic investigations) and a remarkable decline in the average
delivery time at the NFI. In 2007, average delivery time was
approximately 140 days. This includes both ``routine'' investigations
as well as highly complicated customized and interdisciplinary
investigations. At the end of 2012, this number had fallen to 13.8
days, and it is still falling. This represents a reduction of the
delivery time of more than 90 percent. Furthermore, ``customer
satisfaction'' (which is measured every two years by an independent
agency) has increased markedly, and is now at the same level as
customer satisfaction at private companies in other sectors.
3. Defragmentation
Because of the relatively recent origins of forensic science and
the institutional structure in which it arose, the field is fragmented.
It is fragmented in the sense that it consists of dozens of different
areas of expertise that rarely engage in deep interdisciplinary
cooperation. The focus tends to be on areas of expertise, and on
experts, rather than on providing integrated information services to
customers. Furthermore, the field of forensic science is also
fragmented because most forensic laboratories only serve the
geographical jurisdiction of their main customer. In most cases, they
only have one or two customers (e.g., the local police force or
prosecutor's office), which is partly caused by the fact that forensic
labs in many cases are part of the main customer they serve. As a
result, the field of forensics has developed into a sector comprising a
large number of relatively small and local laboratories that
necessarily act as pure production units. As an example, in the United
States, much as in Europe, we find over 400 publicly funded forensic
labs employing around 13,000 employees. Forensics still is a rather
local affair. This is changing however.
No intrinsic borders
Forensic science and services are not intrinsically bound by
jurisdictions or even national borders. In principle, therefore, there
is nothing to prevent consolidation, collaboration, and cross-
jurisdictional or even cross-border traffic of technology and services.
Today, the fragmented condition of the forensic science sector remains
largely intact, but as the field continues to grow and innovate, it is
inevitable that some forensic service providers will develop their own
specialist capabilities, creating an irresistible stimulus for cross-
jurisdictional traffic in forensic products and services. It would be
unrealistic to assume that all local forensic laboratories, especially
the smaller ones, would be able to provide state-of-the-art services
across the full range of disciplines. Furthermore, they cannot be
expected to have sufficient critical mass to ensure continuity and
quality, or sufficient resources to support proprietary R&D programs.
The reality is that most of them will remain pure production units in a
limited number of forensic disciplines, containing small and vulnerable
expert groups depending on just a few key people. Also, budgetary
constraints, especially in an economic downturn such as we are
experiencing now, will continue to put pressure on the forensic sector
to produce more efficiently. Fragmentation costs money, because it
cannot capture economies of scale and leads to suboptimal allocation
and exploitation of what is essentially a very scarce resource.
More generally, the relatively small size of many laboratories,
combined with the fact that they usually serve only one jurisdiction
and operate solely within the criminal justice system, constitutes a
significant and unnecessary impediment to the development of the field
as a whole. This is true in relation to scientific knowledge and
technology, and in relation to operational efficiency. For example,
investments in equipment or R&D that may not make sense on a local
level--because of insufficient caseload--may be justifiable on a
regional or even global level. Similarly, such investments may make
even more sense if the forensic laboratory is allowed to broaden its
customer base, thus expanding the caseload still further and creating
critical mass. Inevitably, setting up a modern forensic laboratory is
an expensive business, due in part to the infrastructure required. Some
disciplines are more expensive than others, but where, in particular,
the fixed costs are high, significant economies of scale can be
achieved as the size of the caseload increases. In other words, the
fragmentation into many relatively small production units is
inefficient, leads to vulnerabilities, contributes to the backlog
problem, and is an obstacle to the kind of research and innovation that
would propel the field forward.
Capacity problems
As stated above, forensic science is not a unified field, but
rather a collection of specialist disciplines. At the NFI, for
instance, more than 30 separate disciplines exist. Some of them are
staffed by just a few experts, as the caseload is not large enough to
justify additional staff. Consider just such a small discipline,
staffed by three qualified forensic examiners. If one of them falls
ill, attends a training course or leaves the organization, this will
have a considerable impact on available capacity. Although such
fluctuations in themselves pose considerable organizational problems
and contribute to the growth of backlogs, the trouble they cause is, of
course, compounded by the inevitable and unpredictable fluctuations in
the inflow of cases. In addition, suppose the organization wishes to
spend about 10 percent of its capacity on R&D in this field. In a team
of three examiners, this amounts to 0.3 full-time equivalents: in other
words, these examiners, either jointly or individually, can at best
devote only a small portion of their work time to innovation. However,
in the real world, the caseload is such that it will tend to drown out
the R&D, with the result that no significant R&D effort is achieved at
all. The result is stagnation of the field.
If the forensic laboratory could service a much larger geographical
area and a larger number of customers, then the caseload at a certain
point would become sufficient to support a staff with critical mass. If
there are 10 or 20 qualified forensic examiners in the discipline in
question, for instance, one or two of them could be freed up to conduct
research full-time. Furthermore, a larger staff has much more
flexibility to deal with setbacks such as illness. In short, the
current fragmentation of the forensics sector, with its many,
relatively small, laboratories, is not conducive to R&D, and gives rise
to problems relating to flexibility and continuity.
Some might argue that the lack of R&D could be solved by creating a
centralized system of R&D-oriented institutes, possibly at universities
or other institutions. These would then perform most of the research.
The theory is that this research would subsequently diffuse into the
forensic system. There are reasons why a certain amount of skepticism
towards this approach is justified. Experience shows that a severe
disconnect is likely to arise between the central research institutes
and the hundreds of production units doing all the casework. After all,
even integrated technology companies find it a struggle to maintain an
R&D program that accurately and continuously reflects their customers'
needs. If (independent) research institutes are so far removed from
actual casework and from customers, it will be very difficult to keep
them on the right track. The probable outcome would be research that is
very clever, but not necessarily what customers want or need. Customer
needs are often surprising, as the NFI (and many companies in the
private sector) have learned the hard way. In order to be able to
appreciate customers' needs, it is necessary to remain in close contact
with them and/or with those who will use the information provided by
the investigations in question.
The foregoing suggests that it is forensic institutes themselves
that are best placed to carry out R&D programs, alone or with partners.
This, at least, provides some guarantee that results will be of the
highest value to customers. However, in order for the institutes to be
able to support significant R&D programs, to guarantee continuity and
to capitalize on economies of scale, they need to create critical mass.
This can be achieved by consolidation (fewer and larger institutions),
by specialization, or by broadening their customer base to cover all
government agencies that have a forensic need.
4. A growing need for training and education
As mentioned above, forensic investigations are becoming
increasingly important and ``mission critical'' to customers. At the
same time, forensic science and technology are becoming more
complicated and difficult to understand for the layman. This
constitutes one of the fundamental challenges of the field. For almost
everyone, a suspect's confession is much easier to understand than, for
example, the evidential value of a complex chemical analysis.
Nevertheless, the latter may provide a much higher evidential value.
Furthermore, using forensic investigations correctly, in a non-biased
way, and interpreting results as intended, is not as easy as it may
seem.
All this points to a growing need for training and education. This
applies not only to forensic investigators, but even more so to the
users of forensic information. This is largely due to a change in the
whole process of criminal investigation. In a sense, the role forensics
plays is similar to automation in factories: it ``technologizes'' the
production process in criminal investigations. In manufacturing, the
nature of the ``human factor'' has changed. Manual labor has been
partially replaced by technology (machines) and knowledge workers (who
design, create, and program the machines). Similarly, traditional
labor-intensive investigative methods are being replaced or
complemented by forensic science and technology. But this means that
all the stakeholders in this process need to be trained to deal with
this new situation. Police officers, prosecutors, and judges, for
instance, need to know how to use forensics properly: they need to ask
the right questions, and they need to interpret forensic results
correctly.
Several years ago, in line with the need for more education and
training, the NFI set up its own Academy with the express purpose of
providing a wide range of stakeholders with the forensic knowledge and
skills they need for their work. These stakeholders include forensic
investigators, judges, police officers, first-responders, policy
makers, and lawyers. Although each group has different requirements,
the general aim is to train them to collect traces correctly (and not
destroy important traces), to use forensic laboratories effectively
(and ask the right questions), and to interpret the results of forensic
investigations correctly. The NFI Academy has been a huge success,
providing approximately 10,000 person-days of training in 2012 for
interested practitioners from around the world.
5. An integrated model
Over the past few years, the NFI has implemented (and indeed is
still implementing) an ``integrated'' organization model based on the
analysis and principles presented above. This means that the
organization not only provides forensic services to (domestic and
foreign) government agencies, but that it also performs its own
research and development in order to improve its services and create
innovative new ones. In its R&D effort, the NFI cooperates with many
companies, universities, and knowledge institutes around the world,
especially in the Netherlands, Japan, and the United States. The R&D is
partially financed by the fee received from customers who pay for the
services of the NFI. The fact that the NFI can and does deliver
products and services to government agencies in the Netherlands and
abroad, as well as to intergovernmental organizations, is also part of
the integrated model.
Forensic products and tools
The NFI still conducts many standardized ``commodity'' services.
The organization also takes on a large and growing amount of custom
work. This type of work often leads to specialized high-end products
and tools, because examiners need them to do their cases. This may take
the form of both hardware and software. Subsequently, such products and
tools can be made available to the forensic community at large, to
beneficial effect. However, the benefit goes beyond the immediate use
of the product or tool. The revenues so earned are invested in new R&D
to enhance current forensic capabilities and investigation techniques.
If many integrated forensic institutes around the world were to do the
same, this would create a whole new dynamic in the field. Conversely,
if innovative products and tools that require large investments in R&D
were distributed free of charge, this would only mean that funds to
fuel the innovation engine would become depleted, stopping further
innovation in its tracks. Laboratories that do not invest in R&D would
benefit from the investments of others, who would subsequently become
starved of funds themselves. Clearly, that is not a sustainable model
for innovation, and it would perpetuate the situation in which most
forensic laboratories are mere production units.
Concluding remarks
Forensic science is clearly at an important stage in its
development. New advances in technology have placed forensics in an
accelerating cycle of growth, as a wider range of parties than ever
before comes to realize just how useful forensics can be for their own
purposes. But this popularity--gratifying as it may be--nonetheless
brings its own challenges, as laboratories become bogged down in work
and customers become more demanding. This paper has reviewed some of
the practical problems that the sector will need to resolve if it is to
meet the demands of society: understanding what customers need,
increasing the value of the information we provide to them, and
generally accelerating our operations. More profoundly, however, we
will need to undergo a shift in mindset and governance.
Several years ago, the NFI saw itself faced with these challenges
and, in response, developed and implemented a number of measures that
have enabled it to eliminate its backlogs and dramatically improve the
quality and delivery times of its forensic investigations. In this way,
it has been able to markedly improve customer satisfaction and has
shown that its integrated model is a viable way forward. The forensic
sector has great potential, but it will certainly find itself
challenged to live up to the high expectations that customers and
society have of it. It is equally certain that the sector can only
succeed if it takes up the challenge and makes fundamental changes
where necessary.
Acknowledgement
The author would like to thank Mr. Mark Stolorow (NIST, USA), Prof.
Arian van Asten (NFI) and Mr. Marcel van der Steen (NFI) for their
valuable contribution.
The Chairman. Thank you very much, sir.
Mr. Michael Bromwich?
STATEMENT OF MICHAEL R. BROMWICH,
MANAGING PRINCIPAL, THE BROMWICH GROUP LLC
AND PARTNER, GORDON PROCTER LLP
Mr. Bromwich. Thank you very much, Chairman Rockefeller,
Senator Thune, Senator Chiesa. I appreciate the opportunity to
be here today.
Forensic science is a pivotal part of the criminal justice
system on the Federal, state, and local level. It has the
ability to identify suspects. It plays a significant role in a
wide range of criminal cases. And as we have seen repeatedly
over the past 20 years, it has the power to exonerate the
innocent.
My background and experience with forensic science over the
past 30 years has been as a prosecutor, defense lawyer, and
investigative agency head, and through extensive investigations
I have conducted of two important forensic labs. For the
purposes of this brief statement, let me highlight the most
relevant matters.
In 1994, I was serving as the Inspector General in the
Department of Justice when we conducted an investigation of the
FBI Lab. The investigation reviewed cases handled by three
sections within the lab involved in analyzing bombing and
explosives cases, including some of the most significant
bombing and explosives cases handled in the previous decade.
These included the World Trade Center bombing case in 1993 and
the Oklahoma City bombing case in 1995.
The findings and conclusions of the investigation were
stunning to forensic scientists in this country and abroad. The
FBI Lab had long been viewed as the gold standard in forensic
science and had exercised enormous worldwide influence on
forensic labs. But our investigation found major flaws with
many of the most significant cases we reviewed, including the
World Trade Center and Oklahoma City bombing cases.
We found that analysts had performed work that lacked
scientific rigor, reached unsupported conclusions, and in many
cases were biased in favor of the prosecution. We recommended
that many of the senior analysts and supervisors be removed
from the lab, and we made broad institutional recommendations
focusing on issues that included accreditation, report writing,
standards development, and training.
In 2005, I was hired by the City of Houston to conduct an
independent investigation of that city's police crime lab. For
several years, the crime lab had been the subject of numerous
allegations claiming that the work it performed was
unscientific, inaccurate, and unreliable. We assembled a top-
flight team of forensic scientists from throughout North
America, and we reviewed more than 3,500 individual cases,
making it the broadest review of a forensic science lab ever
performed.
We found that many of the sections of the lab performed
capable and reliable work, but we also found profound problems
with the work the lab had performed in DNA and serology, with
unacceptably high error rates in both areas. This was
especially disturbing because DNA and serology analysis are
conducted in the most serious cases, including homicides and
sexual assaults. The errors in these cases had tragic human
costs. They resulted in at least two highly publicized sexual
assault cases in which innocent men were being sent to prison
for crimes that they did not commit.
We found the problems in the HPD crime lab to be the result
of many contributing factors, including lack of resources and
support, poor management, insufficient quality control,
inadequate training, inadequate protocols, lax supervision, and
an insular culture.
Now, these two in-depth investigations were really threads
in the broader fabric of concerns that were emerging in the
1990s and 2000s about the state of forensic science in this
country. Forensic science disciplines that were at one time
unquestioned were subjected to heightened scrutiny. Through the
work of the Innocence Project and others, we learned of the
enormous power of DNA analysis to exonerate defendants
previously convicted of crimes.
The dark side of that equation was that, at the same time,
we came to learn that non-DNA forensic analysis and testimony
had frequently led to convictions based on excessive and
unsupported claims about the strength and power of their
conclusions. One study of DNA exonerations has shown that
flawed forensic evidence contributed to approximately 50
percent of wrongful convictions overturned by DNA testing.
Now, the growing disquiet with the state of forensic
science led to the 2005 congressional mandate to the National
Academy of Sciences to conduct its study on the current state
of forensic science, which was published in 2009. That
carefully crafted report has become the touchstone for
subsequent discussion of how best to reform the practice of
forensic science.
In your letter inviting me to testify, you asked me to
address the scope of the problems that can arise in crime labs
and how improved standards, increased training, and
accreditation might help to solve these problems. I have
alluded to many of these in my summaries of our FBI and HPD lab
investigation findings, and I have provided a more detailed
list in my prepared statement.
We need to be realistic about the limitations of reform but
also of its promise. Individual, nonsystemic errors by
individual examiners can never be eliminated. Lab examiners are
human, and they will make mistakes.
But sustained efforts to improve crime labs are possible
and desirable through broad-based fundamental research into the
scientific foundations of various disciplines, the creation of
more uniform standards based on sound science, funding for more
and better training, and developing meaningful systems of
accreditation. These steps would raise the quality of the
forensic science services provided throughout the Nation and
diminish the number of errors.
The legislation introduced last session by Chairman
Rockefeller, which focused on promoting research, requiring
standards development, and implementing uniform standards,
would be an enormous step in the right direction.
Finally, we have come a long way since the days not so very
long ago when prosecutors, defense lawyers, and judges blindly
accepted the findings and conclusions of crime lab analysts.
Over the past 20 years, we have become all too familiar with
their fallibility and the tragic consequences when their
conclusions are flawed and their certainty is unjustified.
We have come to realize the shortcomings in the way
forensic science is practiced in this country and the need for
broad institutional reform. The challenge before us is to make
a serious and sustained effort to address those deficiencies
and improve the quality of justice provided in our criminal
justice system. The people of this country deserve nothing
less.
Thank you very much for your attention, and I, too, am
happy to answer questions.
[The prepared statement of Mr. Bromwich follows:]
Prepared Statement of Michael R. Bromwich, Managing Principal, The
Bromwich Group LLC and Partner, Goodwin Procter LLP
Mr. Chairman and Members of the Committee,
I appreciate the opportunity to be here today to provide my
perspective on issues relating to strengthening forensic science in the
United States. Forensic science is a pivotal part of the criminal
justice system on the federal, state, and local level. Forensic science
has the power to advance criminal investigations by helping to identify
and exclude suspects, plays a significant role in the adversary system
through expert reports and trial testimony, and, as we have seen
repeatedly over the past 20 years, has the power to exonerate the
innocent.
Let me share with you my background and experiences with forensic
science, both as a participant in the criminal justice system over the
last 30 years as a prosecutor, defense lawyer, and agency head, and
through extensive investigations I have conducted of two important
forensic labs.
From 1983 through 1989, I was a Federal prosecutor in New York and
Washington, DC. My experience with forensic science and its techniques
during that period was fairly typical for a prosecutor in the era that
preceded the use of DNA. I worked with forensic scientists and analysts
who provided reports and testimony on fingerprints, serology,
controlled substances, and handwriting comparisons. With the exception
of handwriting analysis, which was generally understood to be more
subjective and less scientifically rigorous than the other fields,
there was no controversy surrounding the forensic science reports that
were produced or the courtroom testimony the analysts provided. They
were accepted as true and beyond question.
Prosecutors happily embraced the boost that forensic science gave
to their cases and did not question the analysis or the conclusions of
the forensic examiners. Neither did defense counsel. These forms of
forensic evidence were routinely admitted into evidence without
challenge or controversy. In my seven years as a Federal prosecutor, I
never heard any doubts expressed about the validity of the science
underlying the reports and testimony used by my colleagues and me, nor
did I ever see any instance of forensic evidence effectively challenged
or excluded from evidence. In fact, I once secured convictions in a
narcotics case after the drugs had been stolen from the prosecutor's
office. The testimony of the chemist was enough.
In 1994, I was serving as the Inspector General of the Department
of Justice (DOJ) when we began an investigation of the FBI Laboratory.
Initially, the investigation focused on claims made by an FBI Lab
scientist that one of his fellow examiners had altered analytic
reports. After some of the initial allegations were substantiated, the
investigation expanded to include a far broader review of cases handled
by three sections within the FBI Lab that were involved in analyzing
bombing and explosives cases. Eventually, the investigation came to
include some of the most significant bombing and explosives cases
handled by the FBI Lab in the previous decade, including the first
World Trade Center bombing case (1993), the Oklahoma City bombing case
(1995), the Avianca bombing case (1989), and many others. The Office of
the Inspector General (OIG) report of investigation, published in April
1997, is available at: http://www.justice.gov/oig/special/9704a/
index.htm.
The findings and conclusions of the investigation were stunning to
forensic scientists in this country and abroad, and to officials in
Federal and local law enforcement. The FBI Lab had long been viewed as
the gold standard in forensic science, and had exercised enormous
influence on forensic labs in the United States and around the world.
Our investigation found major flaws and deficiencies with many of the
most significant cases we reviewed, including the World Trade Center
and Oklahoma City bombing cases. We found that many of the most senior
analysts and supervisors in the FBI Lab had performed work that lacked
scientific rigor, reached unsupported conclusions, and, in many cases,
were biased in favor of the prosecution. We recommended that many of
the senior analysts and supervisors be removed from the Lab because
they had shown themselves to be unable or unwilling to conduct rigorous
forensic analysis. We issued a set of broad institutional
recommendations focusing on accreditation, organizational
restructuring, report writing, quality assurance, documentation, the
development of written protocols, and training.
The FBI reacted immediately to our broad set of 40 recommendations.
When we returned a year later, we found that the FBI had done a
responsible job of implementing those recommendations. Unfortunately,
the same cannot be said of the efforts of a DOJ task force created to
follow up on a large number of cases called into question by the OIG
investigation. The operations of the DOJ task force were plagued by
delays, lack of transparency, and the failure to notify defense lawyers
representing clients in cases in which problematic forensic work was
identified. The deficiencies in the work of the DOJ task force were
highlighted in a series of stories published last year in the
Washington Post.\1\ In response, the DOJ Inspector General has launched
an inquiry into the causes of those shortcomings.
---------------------------------------------------------------------------
\1\ http://www.washingtonpost.com/local/crime/doj-review-of-flawed-
fbi-forensics-processes-lacked-transparency/2012/04/17/
gIQAFegIPT_story.html; http://www.washingtonpost.com/local/crime/
convicted-defendants-left-uninformed-of-forensic-flaws-found-by-
justice-dept/2012/04/16/gIQAWTcgMT_story.html
---------------------------------------------------------------------------
In 2005, I was hired by the City of Houston to conduct an
independent investigation of the Houston Police Department (HPD) Crime
Lab. For several years, starting in 2002, the HPD Crime Lab had been
the subject of numerous allegations claiming that the work it performed
was unscientific, inaccurate, and unreliable. Those allegations
encompassed virtually every section of the Lab, including DNA,
serology, controlled substances, toxicology, trace evidence, firearms,
and handwriting. The City attempted in various ways to address the
problems in the Lab by bringing in consultants and a new Lab director,
but continued public criticism of the Lab caused the HPD Chief of
Police, with the blessing of the mayor, to seek an outside, independent
review. To conduct the investigation, we assembled a top-flight team of
forensic scientists from throughout North America. The team reviewed
and analyzed cases in every forensic science discipline in which the
Lab performed work. By the end of the investigation, we had reviewed
more than 3,500 individual cases, making it the broadest review of a
forensic science lab ever performed.
We found that many sections of the Lab performed capable and
reliable work, but we also found profound problems with the work the
Lab had performed in DNA and serology, with unacceptably high error
rates in both areas of analysis. This was especially disturbing because
DNA analysis and serology analysis are conducted in the most serious
cases, including homicides and sexual assaults. We were so alarmed by
the error rates we found in serology cases that we expanded our review
to include a larger and broader set of cases than originally
contemplated, reaching back to the 1980s. The errors in these DNA and
serology cases were not without tragic human costs; they resulted, in
at least two highly publicized sexual assault cases, with innocent men
being sent to prison for crimes that subsequent analysis demonstrated
that they could not have committed. We found the problems in the HPD
Crime Lab to be the result of many factors, including lack of resources
and support, poor management, insufficient quality control, inadequate
training, inadequate protocols, lax supervision, and an insular culture
in which Lab management for decades had prevented any meaningful
external reviews. The reports issued in connection with that
investigation are available at: www.hpdlabinvestigation.org.
These two in-depth investigations were threads in the broader
fabric of concerns that were emerging in the 1990s and 2000s about the
state of forensic science in this country. Forensic science disciplines
that were at one time unquestioned came to be subjected to heightened
scrutiny. Through the work of the Innocence Project and others, we
learned of the enormous power of DNA analysis to exonerate defendants
previously convicted of serious crimes. The dark side of that equation
was that, at the same time, we came to learn that non-DNA forensic
analysis and testimony had frequently led to convictions based on
excessive and unsupported claims about the strength and power of their
findings and conclusions. Indeed, flawed forensic science was in many
instances revealed to be a key ingredient in securing wrongful
convictions. One study of DNA exonerations has shown that flawed
forensic evidence contributed to approximately 50 percent of wrongful
convictions overturned by DNA testing.\2\
---------------------------------------------------------------------------
\2\ Brandon Garrett and Peter Neufeld, Virginia Law Review, Vol.
95, No. 1, March 2009, p. 8.
---------------------------------------------------------------------------
This growing disquiet with the state of forensic science led to the
2005 congressional mandate to the National Academy of Sciences (NAS) to
conduct a study on the current state of forensic science in the United
States, and ultimately to the 2009 publication of Strengthening
Forensic Science in the United States: A Path Forward. That carefully
crafted report has become the touchstone for subsequent discussion of
how best to reform the practice of forensic science in this country.
The report summarized its core finding in this way:
The forensic science system, encompassing both research and
practice, has serious problems that can only be addressed by a
national commitment to overhaul the current structure that
supports the forensic science community in this 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 recent activities of this Committee and the Senate Judiciary
Committee are designed to help fully realize the promise of forensic
science and to reduce the flaws and shortcomings that currently exist
in the system. That promise is to focus investigations on legitimate
suspects, aid in identifying and convicting the guilty, and help to
exonerate the innocent. But our experience with the criminal justice
system suggests that this bright promise cannot be achieved without the
Federal leadership and funding called for by the NAS report.
In your letter inviting me to testify today, you asked me to
address the scope of the problems that can arise in crime labs and how
improved standards, increased training, and accreditation might help to
solve these problems. Let me do so briefly. In the crime lab
investigations I have conducted, the problems we discovered included
the following:
Individual, non-systemic errors made by individual lab
examiners;
Systemic errors made by groups of lab examiners due to lack
of adequate training;
Failures in supervision;
Inadequate systems to ensure quality assurance and quality
control;
Development and application of untested and unvalidated
forensic procedures that are unique to individual examiners or
groups of examiners and have not been peer reviewed;
Outright fraud by examiners who have falsified analytic
results;
Skewing of analytic results in favor of the prosecution;
Inadequate efforts to develop a culture of science within
crime labs, including through staffing top leadership positions
with qualified scientists;
Failures of leadership at intermediate and top management
levels in crime labs; and
Absence of accreditation and other external reviews.
This is an extensive catalog of problems and issues, not all of
which are susceptible to improvement in programs designed to address
standards, training, and accreditation.
We need to be realistic about the limitations of reform but also of
its potential to improve the quality of forensic science services
delivered in this country. Individual, non-systemic errors by
individual examiners can never be eliminated--lab examiners are human
and they will make mistakes. But sustained efforts to improve crime
labs are possible and desirable through 1) broad-based, fundamental
research into the scientific foundations of various forensic
disciplines; 2) the creation of more uniform standards based on sound
science; 3) funding more and better training; and 4) developing
meaningful systems of accreditation. These steps would undoubtedly
raise the quality of the forensic science services provided throughout
the Nation and diminish the number of errors.
In my investigations of the two major crime labs, my teams found
that deficiencies in standards, training, and the absence of
accreditation played major roles in the problems we examined.
In the investigation of the FBI Lab, the team found that:
``Meaningful peer review and reliance on validated
procedures would have prevented'' many of the flawed
conclusions reached by FBI Lab analysts;
There was no coordinated, overall training program
within the Lab; and
Until 1994, there had been no effort by the FBI to
seek accreditation or other types of external reviews.
In the investigation of the HPD Crime Lab, the team found
that
Standard Operating Procedures consisted of materials
cobbled together over time without adequate reevaluation
and reorganization, and virtually no technical reviews of
analysts' work;
The majority of errors found in the Lab's work were
the product of poor training and lack of competent
technical guidance and supervision rather than intentional
misconduct; and
Lab management failed to make meaningful efforts to
seek accreditation from recognized outside bodies.
If these two labs were isolated instances of the problems created
by inadequate standards, poor training, and lack of accreditation,
there might not be a need for a broad, national solution. But the NAS
report concluded, after a lengthy and detailed review, that these
problems are pervasive. I agree.
The legislation introduced last session by Chairman Rockefeller,
which focused on promoting research, requiring standards development,
and implementing uniform standards, would be an enormous step in the
right direction. In view of the central importance that the various
forensic sciences play in our criminal justice system, the lack of
funding for basic and applied research in forensic science cannot be
defended. The bill called for the development of a national forensic
science research strategy developed by the National Science Foundation,
a forensic science grant program, and the creation of forensic science
research centers. In addition, it called for the National Institute of
Standards and Technology (NIST) to develop forensic science standards,
in consultation with standards development organizations and other
stakeholders, including current participants in the forensic science
system. Finally, it called for the formation of a Forensic Science
Advisory Committee co-chaired by the Director of NIST and the Attorney
General.
The Justice Department has already taken one step in the right
direction. As you know, in February 2013, the Attorney General
published a Federal Register Notice announcing the formation of the
National Commission on Forensic Science. The Commission's
responsibilities will include recommending strategies for enhancing
quality assurance in forensic science units. Its duties will include:
Recommending priorities for standards development;
Reviewing forensic science subject matter guidance developed
by subject matter experts;
Developing proposed guidance relating to the use of forensic
science in the criminal justice system;
Developing policy recommendations, including:
A uniform code of professional responsibility; and
Minimum requirements for training, accreditation and/
or certification; and
Identifying the current and future requirements to
strengthen forensic science and meet growing demand.
The membership of the National Commission has not yet been
determined. Whether it is capable of realizing the ambitions of the
Notice announcing its formation remains to be seen, but DOJ should be
applauded for taking the first major institutional step in the
direction of providing high-level Federal attention to some of the most
important issues implicating the delivery of forensic science services.
The formation of the National Commission is an important step, but
much more needs to be done. It does not eliminate the need for
achieving the other goals contained in the legislation proposed last
year. The imperatives of basic and applied research remain
undiminished, as does the need for focused efforts on developing and
refining standards for forensic science. As the NAS report concluded,
``although congressional action will not remedy all of the deficiencies
in forensic science methods and practices, truly meaningful advances
will not come without significant concomitant leadership from the
Federal Government.''
We have come a long way since the days--not so very long ago--when
prosecutors, defense lawyers, and judges blindly accepted the findings
and conclusions of crime lab analysts. Over the past 20 years, we have
become all too familiar with the fallibility of crime lab analysts and
the tragic consequences when their conclusions are flawed and their
certainty is unjustified. We have come to realize the shortcomings in
the way forensic science is practiced in this country and the need for
broad institutional reform. The challenge before us is to make a
serious and sustained effort to address the deficiencies that have been
identified and to improve the quality of justice provided throughout
this country. The people of this country deserve nothing less.
Thank you for your attention. I am happy to answer any questions
you may have.
The Chairman. Thank you, sir.
Dr. Gregory Schmunk, National Association of Medical
Examiners, Chief Medical Examiner.
Please.
STATEMENT OF GREGORY A. SCHMUNK, M.D., PRESIDENT,
NATIONAL ASSOCIATION OF MEDICAL EXAMINERS
AND CHIEF MEDICAL EXAMINER, POLK COUNTY MEDICAL EXAMINER'S
OFFICE
Dr. Schmunk. Chairman Rockefeller, Ranking Member Thune,
Senator Chiesa, thank you very much for giving me the
opportunity to speak today.
I am a board-certified forensic pathologist. I am also a
registered diplomat with the American Board of Medicolegal
Death Investigators. And I am representing the National
Association of Medical Examiners, which is a professional
society representing over 1,100 forensic pathologists, medical
examiners, medico-legal death investigators, and coroners in
the U.S.
Our organization has long been supportive of efforts to
draft legislation for the death investigation community. In
fact, as members of the Consortium of Forensic Science
Organizations, we have long asked for legislation to be written
creating a Federal structure that will provide guidance and
leadership for our community.
I want to emphasize that my remarks today, however, will
primarily focus on forensic pathology and death investigation
and not on the crime labs.
NAME believes that it is critical to have national
uniformity in death investigation policies, to ensure proper
training and recruitment of forensic pathologists, to improve
communication between medico-legal jurisdictions, and to create
a mechanism for the proper distribution of death investigation
data.
The report in 2009 contained many recommendations for
improving the quality of forensic services, including medico-
legal death investigation, in the United States. NAME has
endorsed those recommendations of the council. We believe that
there needs to be a formal and Federal entity which oversees
death investigation. We believe that by having this entity we
could address most of our major concerns and specifically
ensure the issue of continuity and quality.
NAME does believe that the accreditation of offices and the
certification of medical examiners, coroners, and death
investigators should be mandatory. NAME has had professional
practice standards for autopsy performance since 2005. Forensic
pathologists have been board-certified by the American Board of
Pathology since 1964. And the American Board of Medicolegal
Death Investigations has certified medical death investigators
since 2005. But many offices throughout this country are
staffed by noncertified practitioners.
NAME has also had a professional system of medico-legal
office accreditation in place since 1974. But, unfortunately,
due to the lack of any Federal mandate for accreditation, only
70 out of 465 medico-legal death investigation offices are
currently accredited in the United States, approximately one-
third of the population.
So the standards exist, but we do not have the leadership
and carrot-and-stick approach to enforce them within the
medical examiner community. Since forensic pathologists receive
very little Federal funding, it is difficult to enforce any
such standards on the Federal level. We do receive Paul
Coverdell Forensic Science Act funding, but that was not funded
by the administration this year. And since its inception in
2000, Coverdell has been funded only five times.
Increased Federal funding of the forensic pathology
programs could represent the carrot to encourage states to
adopt uniform standards. Existing standards should not be
phased out but should be a starting point and should grow with
the science.
NAME has attempted to garner interest in drafting a new
national model medical examiner legislation without success.
The last law was in 1954, and it is obsolete. There are various
death investigation systems throughout the country, including
medical examiner, sheriff-coroner in California, district
attorney coroner in Nebraska, and elected coroner.
A constituent from one of your states may die in his
jurisdiction where the investigator is not trained in death
investigation, operates under budget shortages, and uses no
required guidelines. The office may not take jurisdiction of
the case, may not request an autopsy, or may misinterpret the
medical findings of the autopsy.
NAME strongly also feels that incentive funds should be
provided to states and jurisdictions to ensure that death
investigation systems in the country are all of uniform
excellence. This could be done by providing support for
accreditation and certification or by encouraging
regionalizations.
The variable death investigation was an expose in
``Frontline,'' NPR, and ProPublica in 2011.
But another problem we have is not enough forensic
pathologists. There are an estimated 500 board-certified
forensic pathologists in the United States and----
The Chairman. Excuse me, sir. Not enough what?
Dr. Schmunk. Forensic pathologists.
The Chairman. OK.
Dr. Schmunk. Approximately 500 currently practice in the
United States. We need approximately 1,000, according to
estimates. This is most pronounced in rural areas.
Only 30 to 40 forensic pathologists are graduated each
year. As many of the programs that train forensic pathologists
are not associated with medical schools where there is graduate
funding for education, the funding for training is often from
local tax dollars.
Until we achieve these points, we will not have systems
that are run professionally in an accredited office with board-
certified forensic pathologists.
A matter of great importance is communication among the
states. There was a program, the Medical Examiner and Coroner
Information Sharing Program, in the CDC in 1986, but that was
funded out in 2004. We believe that this office should be
recreated.
We also support the concept of basic and applied research
in forensic science and forensic pathology in particular.
Evidence-based medicine is a big thing for us, and that will
improve the quality of forensic death investigation and
ensuring the confidence in the outcomes.
I would like to thank you for the opportunity of speaking
to you today, and I welcome any questions.
[The prepared statement of Dr. Schmunk follows:]
Prepared Statement of Gregory A. Schmunk, M.D., President, National
Association of Medical Examiners and Chief Medical Examiner, Polk
County Medical Examiner's Office
Mr. Chairman, Ranking Member Thune, and Members of the Committee:
Thank you for giving me the opportunity to testify before you today
regarding science and standards in forensics and specifically how those
issues are reflected in the Medical Examiner community.
My name is Gregory Schmunk and I am a physician certified by the
American Board of Pathology in Anatomic and Forensic Pathology and a
Registered Diplomat with the American Board of Medicolegal Death
Investigators (ABMDI). I am Chief Medical Examiner for Polk County,
Iowa in the City of Des Moines. I am here today representing the
National Association of Medical Examiners (NAME) as their President.
NAME is the professional society representing over 1,100 Forensic
Pathologists, Medical Examiners, Medicolegal Death Investigators, and
Coroners in the United States.
My organization has long been supportive of the efforts to draft
legislation for the Death Investigation community in both your
Committee and the Judiciary Committee. In fact, as members of the
Consortium of Forensic Science Organizations we have long asked for
legislation to be written creating a Federal structure that will
provide guidance and leadership for our community. We believe that it
is critical to have national uniformity in death investigation
policies, to ensure proper training and recruitment of trained
pathologists to ensure the quality investigations, to improve the
frequent lack of communication between medico-legal jurisdictions, and
to create a mechanism for the proper distribution of death
investigation data not only in the forensic community but also the
public health, public safety, and homeland security communities.
In 2009, the National Research Council (NRC) published a report,
Strengthening Forensic Science in the United States: A Path Forward.\1\
This report contained many recommendations for improving the quality of
forensic services including medico-legal death investigation in the
United States. We believe many of those recommendations, if
implemented, could resolve many of the problems within the Medical
Examiner community. In July of 2009, NAME passed a resolution \2\
strongly endorsing the recommendations of the Council and specifically
endorsed the establishment of a National Institute of Forensic Sciences
to promote the development of forensic science into a mature field of
multidisciplinary research and practice based on scientific principles.
---------------------------------------------------------------------------
\1\ Strengthening Forensic Science in the United States: A Path
Forward accessed 6/23/2013 at http://www.nap.edu/
catalog.php?record_id=12589
\2\ National Association of Medical Examiners Executive Committee
and Board of Directors Resolution on National Research Council (NRC) of
the National Academies report ``Strengthening Forensic Science in the
United States: A Path Forward.'' July 2009
---------------------------------------------------------------------------
NAME has long believed that there needs to a formal and Federal
entity which overseas forensic science and death investigation. We
believe that by having this entity exist we could address most of our
major concerns and specifically the continuity of quality. However, it
is important to recognize that the entity must take into consideration
the fact that a complete death investigation determines the cause of
death and can thus assist in a criminal investigation.
NAME specifically endorsed the NRC recommendation that
accreditation and individual certification of forensic science
professionals, specifically medical examiners, should be mandatory.
NAME has had professional practice standards for autopsy performance
since 2005.\3\ These standards are under constant review and revision.
NAME has also had a professional system of medico-legal office
accreditation in place since 1974 \4\ and is currently working towards
ISO certification of our system. Unfortunately, due to the lack of any
Federal or state mandates for accreditation, only 70 out of over 465
\5\ offices performing forensic autopsies are currently accredited in
the United States. This is up from 40 offices in 2004. NAME accredited
offices serve a total of just over 102 million persons or around \1/3\
of the population. Forensic Pathologists have been individually
certified by the American Board of Pathology \6\ since 1964. The
American Board of Medicolegal Death Investigators (ABMDI) \7\ has
certified Medicolegal Death Investigators since 2005. Unfortunately,
additional certification bodies have risen with less rigorous
certification standards.\8\
---------------------------------------------------------------------------
\3\ NAME Autopsy Performance Standards 2013 accessed 6/23/2013 at
https://netforum.avectra
.com/eweb/DynamicPage.aspx?Site=NAME&WebCode=PubIA
\4\ NAME Accreditation Checklist 2009-2014 accessed 6/23/2013 at
https://netforum.avectra
.com/eweb/DynamicPage.aspx?Site=NAME&WebCode=PubIA
\5\ National Association of Medical Examiners, Preliminary Report
on America's Medicolegal Offices (180 day report to the Senate
Appropriations Committee; findings presented at the National Institute
of Justice Summit on Forensic Sciences Services, May 2004) accessed 6/
23/2013 at http://www.nij.gov/nij/pubs-sum/213420.htm
\6\ http://www.abpath.org/
\7\ http://www.abmdi.org/
\8\ ``No Forensic Background? No Problem'' accessed 6/23/2013 at
http://www.propublica.org/article/no-forensic-background-no-problem
---------------------------------------------------------------------------
This clearly points to the fact that the standards exist but we
lack the leadership and carrot/stick to enforce them within the medical
examiner community. Since forensic pathologists receive very little
Federal funding so it is difficult to enforce any such standards. In
fact, the only funding we receive is that under the Paul Coverdell
Forensic Science Act which was not funded by the Administration this
year. Since its inception in 2000 Coverdell has been funded in the
Federal budget less than five times. Increased Federal funding of
forensic pathology programs could represent the ``carrot'' to encourage
states to adopt uniform standards.
Therefore, no current Federal or uniform state standards exist for
death investigation other than the voluntary NAME standards previously
mentioned and the death investigation standards issued by the National
Institutes of Justice in 1999.\9\ We think it is important to point out
here that we do not believe that these standards should be thrown out.
Rather, we believe they are a starting point and should grow with the
science. But as noted there is very little Federal funding that goes to
our community that could enforce standards. To that end it is critical
that grants be created and funded based on the needs of the forensic
community. There needs to be Federal guidance and leadership in
mandating standards.
---------------------------------------------------------------------------
\9\ ``Death Investigation: A Guide for the Scene Investigator--
Technical Update'', National Institutes of Justice 2011, accessed 6/23/
2013 at http://www.nij.gov/pubs-sum/234457.htm
---------------------------------------------------------------------------
NAME has attempted to garner interest in drafting new national
model medical examiner legislation without success. The last model
legislation was issued in 1954 and is obsolete. Various death
investigation systems exist around the country such as Medical
Examiner, Sheriff-Coroner (California), District Attorney-Coroner
(Nebraska), and elected Coroner. Thus a constituent from one of your
states may be in a jurisdiction where the coroner is not trained in
death investigation, operates under a budget shortage, and uses no
required guidelines. They may not take jurisdiction of a case, not
request an autopsy or misinterpret the medical findings of the autopsy.
The 65 year old crash victim may not have visible injuries and be
certified as a natural death or the decedent in the motel room may have
a detectable and heritable cardiac condition which could have been
found at autopsy, giving the surviving children opportunity to assess
their own risks for a similar condition. Recently, an under-funded
system in North Carolina missed rapid diagnosis of two carbon monoxide
deaths in a motel room, resulting in a third death of a child.\10\ The
variability of death investigation and the effects on your constituents
was the subject of an extensive expose by NPR, Frontline, and
ProPublica in 2011.\11\
---------------------------------------------------------------------------
\10\ ``Failures in state medical examiner system were exposed, not
fixed'' accessed 6/23/2013 at http://www.newsobserver.com/2013/06/22/
2982968/failures-in-state-medical-examiner.html
\11\ ``Medical Examiners In America: A Dysfunctional System''
accessed 6/23/2013 at http://www.huffingtonpost.com/2011/02/02/the-
real-csi-how-americas_n_816842.html and ``Post Mortem: Death
Investigation in America'' accessed 6/23/2013 at http://
www.propublica.org/series/post-mortem
---------------------------------------------------------------------------
But we must also make sure that we have enough pathologists in the
country to perform the job. A recent report from the Justice Department
\12\ addressed workforce shortages and blames the shortage of forensic
pathologists on limited numbers of training programs and low pay in
relation to other medical subspecialties. An estimated 500 board
certified forensic pathologists are currently in practice; it is
estimated that at least 1,000 are needed to meet even the minimal needs
of the country. The lack of board certified forensic pathologists is
more pronounced in rural areas. An alarming trend is the lack of
medical students pursuing a career in forensic pathology. While there
are 131 medical schools in the U.S. only 37 forensic pathology training
programs exist. Of the 77 approved training positions in 2012 only 52
were funded and only 42 were actually filled.\13\ Of the 30-40 forensic
pathologists trained each year some choose not to practice forensics
and only two-thirds choose to practice full time. The supply is thus
barely able to keep up with the attrition in the field due to death,
retirement and decisions to move into a better compensated and less
stressful branch of pathology. As many of these programs are not
associated with medical schools (where funding for graduate medical
education is sometimes available), funding for forensic pathology
training often comes from local tax dollars, if at all.
---------------------------------------------------------------------------
\12\ ``PRC#5: Increasing the Supply of Forensic Pathologists in the
United States: A Report and Recommendations'' accessed 6/23/2013 at
http://swgmdi.org/index.php?option=com_content
&view=article&id=90&Itemid=103
\13\ Report of Forensic Pathology Fellows in the United States
2011-12 Academic Year Prepared by Randy Hanzlick, MD, Chair, NAME ad
hoc Data Committee
---------------------------------------------------------------------------
NAME is strongly in agreement with the NRC recommendation that
incentive funds should be provided to states and jurisdictions with the
goal of ensuring that all death investigation systems in the country
are of uniform excellence. Until this is achieved we will continue to
see some parts of our country which have systems which are not run
professionally, in an accredited Medical Examiner system, with all
forensic autopsies performed or directly supervised by board certified
forensic pathologists. We will continue to have a shortage of forensic
pathologists and many forensic autopsies will be performed each day by
individuals who are not trained in the profession, sometimes even by
non-pathologists. The shortage of forensic pathologists has even led to
physician extenders, such as autopsy assistants, performing medico-
legal autopsies in some jurisdictions \14\ and even testifying in
homicide trials.\15\ In fact, due to the lack of standards, death
investigations are commonly performed in the country by individuals
with no specific training (including either persons with no medical
training or paramedics, nurses and EMTs).
---------------------------------------------------------------------------
\14\ ``Was a Bachelor of Science performing unsupervised forensic
autopsies in Missouri?'' accessed 6/23/2013 at http://
pathologyblawg.com/?s=parcells
\15\ ``Loughridge murder trial begins'' accessed 6/23/2013 at
http://www.waynesvilledaily
guide.com/article/20120911/NEWS/120919648#axzz2X4z7dIpN
---------------------------------------------------------------------------
Another matter of great importance to our community is that of
communication and data sharing among States. Surprisingly this is
another victim of the lack of leadership from the Federal Government in
forensic science and medico-legal death investigation. In 1986, he
Medical Examiner/Coroner Information Sharing Program (MECISP) was
established by the Centers for Disease Control and Prevention (CDC)
because of the lack of uniformity in national death investigation
policies, the frequent lack of communication between medico-legal
jurisdictions, and the need for more wide-spread distribution of death
investigation data. The primary goals of the MECISP were:
To improve the quality of death investigations in the United
States and to promote the use of more standardized policies for
when and how to conduct these investigations.
To facilitate communication among death investigators, the
public health community, Federal agencies, and other interested
groups.
To improve the quality, completeness, management, and
dissemination of information on investigated deaths.
To promote the sharing and use of medical examiner and
coroner (ME/C) death investigation data.
Unfortunately, due to changes in administrative policy in 2004 this
office ceased to exist and with it went our ability to communicate and
share data across borders. We believe this office needs to be
recreated.
NAME endorses the position of the NRC report that support for basic
and applied research in forensic science and forensic pathology in
particular is needed. The application of evidence based medicine is
essential to improving the quality of forensic death investigation and
ensuring confidence in the outcomes. In addition, the provision of
grants to state and county systems to improve the overall quality of
forensic pathology services would serve to raise the bar for death
investigation across the nation, allowing antiquated and inadequate
systems to be replaced by modern medical examiner systems using
certified practitioners in accredited offices. This could be
accomplished, for example, by providing support for accreditation and
certification or by encouraging regionalization in order to conserve
scarce resources.
A major focus of the Federal Government is currently in health
care. The Affordable Care Act, or any subsequent modifications to
improve health care in the country, does have an ultimate focus on
quality and accountability. Although possibly not directly within the
scope of this committee, I would like to note that the national autopsy
rate is miserably low at about 8.5 percent of deaths. The gold standard
for healthcare accountability is the autopsy. Unfortunately when the
Joint Commission on Accreditation of Healthcare Organizations dropped
its requirement for a minimum hospital autopsy rate of 20 percent in
the mid-1970s, hospitals across the country stopped doing autopsies,
which are uncompensated by Medicare or any insurance program and are
thus a drain on the bottom line. Medical Examiners and Coroners around
the country have become the de facto autopsy service for the country.
But with manpower issues and funding deficiencies, many autopsies which
could provide essential information are left undone. Many studies have
shown that the autopsy provides quality control to the medical
community, in addition to the contribution to public health. As an
example, trauma systems around the country regularly audit their
provision of care by means of peer review. When a death has resulted
from trauma, the autopsy plays a vital role in detecting injuries which
may have been missed. This helps to allow trauma systems to evaluate
whether a death may have been preventable. An autopsy may not be
performed if sufficient medical information is available from
hospitalization, even though the death lies within medical examiner
jurisdiction. Thus, even though the legal obligation of the medical
examiner system is fulfilled, valuable additional information of value
to the medical and legal communities may be lost, often for simply
fiscal reasons.
In conclusion, I would like to thank you for this opportunity to
address the Committee today. I also thank you for what you have done
thus far and we look forward to the continued discussion with you and
your staff in order to achieve the much needed Federal leadership that
we require in the field of forensics.
Resolution
National Association of Medical Examiners
Executive Committee
July 2, 2009
Be it resolved:
The National Association of Medical Examiners (NAME) strongly
endorses all of the recommendations of the National Research Council
(NRC) of the National Academies encompassed in the report
``Strengthening Forensic Science in the United States: A Path
Forward.''
The NAME Executive Committee has the following specific comments on
the recommendations:
Recommendation #1
The first and most important NAS recommendation is that a new and
independent National Institute of Forensic Sciences (NIFS) be
established to promote the development of forensic science into a
mature field of multidisciplinary research and practice founded on the
systematic collection and analysis of data. NAME strongly supports this
recommendation and sees it as the foundation for the remainder of the
NRC recommendations. NAME also recognizes that there might be
impediments to establishing a new institute at this time. If NIFS is
unattainable at present, NAME believes that the duties of this agency
should be placed as a bridging step into a new Office of Forensic
Services (OFS) within an existing agency fulfilling the spirit of the
NRC recommendations.
The report outlines that one of the functions of NIFS is to
establish and enforce best practices for forensic science
professionals. In the arena of medico-legal death investigation, NAME
has established forensic autopsy performance standards that can be used
for this purpose.
NAME believes that an essential function of NIFS would be to
conduct periodic forensic science needs assessments at the federal,
state, regional, and local levels in order to ensure optimal provision
of resources to service providers. Such assessments should also
consider research needs. The assessment results should be presented in
a report.
Recommendation #4
NAME supports the NRC recommendation that all public forensic
science laboratories including medical examiner and coroner offices
should be independent from or administratively autonomous within law
enforcement agencies or prosecutor offices. Provisions should be made
to assure the technical and professional autonomy of forensic service
providers at all levels. The goal is to have unbiased professional
testing and reporting and the absence of real and perceived conflicts
of interest. We agree, that to achieve this end will require incentive
funds as indicated in the report.
Recommendation #5
NAME endorses the recommendation that research programs on human
observer bias and sources of human error in forensic examinations
including studies to determine contextual bias in forensic practice
should be encouraged. However, NAME urges caution in the arena of
contextual information and forensic pathology. Medical examiners are
physicians who operate in the medical paradigm of using a clinical
history and information about the circumstances surrounding a death to
generate hypotheses about potential causative diseases and injuries.
The autopsy and laboratory examination allows a forensic pathologist to
confirm or refute these hypotheses and reach medical conclusions.
Autopsy is the practice of medicine. The history and circumstances
provide the context for the autopsy and laboratory findings. In
addition to determining cause of death, medical examiners are directed
to determine the manner of death, which is largely based on the
circumstances surrounding death.
Recommendation #7
NAME endorses the recommendation that 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 the arena of medico-legal death
investigation NAME believes that all death investigators should at
least be certified by the American Board of Medicolegal Death
Investigators at the registry (basic) level. All pathologists
performing medico-legal autopsies should be certified by the American
Board of Pathology in forensic pathology. All medico-legal death
investigation offices and agencies should be accredited using
professional consensus practice standards such as those developed by
NAME. To achieve such ideals will require funding to improve the
organization and operations of many medico-legal death investigation
offices. Training programs and certifying and accrediting bodies will
likely also need funding to process increasing numbers of applicants.
Recommendation #11
NAME fully supports the recommendation ideal that incentive funds
should be provided to states and jurisdictions with the goal of
replacing coroner systems with medical examiner systems. These funds
should be used to build facilities, purchase necessary equipment,
improve administration, and ensure education, training and staffing of
offices. To foster this transition, NAME supports the recommendation
that NIFS should work with the National Conference of Commissioners on
Uniform State Laws, the American Law Institute and NAME to draft
legislation for a modern model death investigation code. NAME also
supports the recommendation that all medico-legal autopsies should be
performed or directly supervised by a board certified (American Board
of Pathology) forensic pathologist and that this standard should be
phased in over a defined period of time. As a more immediate step, NAME
believes it essential that all medico-legal death investigative systems
incorporate the leadership of a board certified forensic pathologist.
Efforts to achieve more uniformity in medico-legal death investigation
can be hindered by the severe lack of resources (financial, personnel,
equipment, and training) on a national level. Each of these resources
should be addressed in order to improve our national medico-legal death
investigation infrastructure on a jurisdictional or state level.
The report also recommends that NIFS and the National Institutes of
Health (NIH) promote scholarly, competitive peer-reviewed research and
technical development in forensic medicine and develop a strategy to
improve forensic pathology research. This recommendation includes the
provision of research funding and the development of a study section to
establish research goals and evaluate research proposals. This goal is
reinforced in recommendations #1 and 3. NAME enthusiastically supports
these recommendations. Forensic pathology supports both public health
and public safety but this combined role has often remained
unrecognized. Historically, minimal research funds have been provided
for forensic pathology research by the Centers for Disease Control and
Prevention and the National Institute of Justice.
NAME also supports the recommendation that NIFS/NIH in conjunction
with NAME and the American Board of Medicolegal Death Investigators
establish a Scientific Working Group (SWG) for forensic pathology and
medico-legal death investigation. NAME agrees that this committee
should develop and promote standards for best practices,
administration, staffing, education, training, and continuing education
for competent death scene investigation and postmortem examinations.
NAME believes that this committee should be led by and have strong
representation from board certified forensic pathologists.
As also articulated in recommendation #7, NAME supports the concept
that all medical examiner offices should be accredited pursuant to NIFS
endorsed standards and believes that professional consensus
accreditation standards such as those developed by NAME should become
the NIFS standard. Restricting Federal funding to offices that are
accredited or making measurable and significant progress towards
accreditation is appropriate.
As outlined in the report, recruitment of qualified practitioners
into the forensic pathology should be enhanced. NAME supports the
recommendation that 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.
Increasing the numbers of forensic pathologists will facilitate the
transition from coroner to medical examiner systems.
Report of Forensic Pathology Fellows in the United States
2011-12 Academic Year
Prepared by Randy Hanzlick, MD, Chair, NAME ad hoc Data Committee
A few years back, here were about 40 ACGME-accredited forensic
pathology training programs in the United States. In recent years, the
number has been 37. IN the past year or so, two of those programs have
become inactive (Newark NJ and Oklahoma City). Thus, there are
technically 35 active forensic pathology fellowship training programs.
Locations, number of ACGME-approved positions, number of funded
positions, and number of filled positions is shown below.
------------------------------------------------------------------------
Number of Number of
Name of the Sponsoring approved funded Filled
Institution positions positions positions
------------------------------------------------------------------------
Allegheny County 2 2 1
------------------------------------------------------------------------
Armed Forces Medical Examiner 4 0 0
------------------------------------------------------------------------
Bexar County Medical Examiner's 2 1 1
Office
------------------------------------------------------------------------
Broward County Medical Examiner's 2 1 1
Office
------------------------------------------------------------------------
Cook County Office of the Medical 2 1 1
Examiner
------------------------------------------------------------------------
Cuyahoga County Medical 3 1 1
Examiner's Office
------------------------------------------------------------------------
Emory University School of 2 1 1
Medicine
------------------------------------------------------------------------
Harris County 2 2 1
------------------------------------------------------------------------
Hennepin County Medical Examiner 1 1 1
------------------------------------------------------------------------
Indiana University 1 1 1
------------------------------------------------------------------------
Jackson County Medical Examiner's 1 1 0
Office
------------------------------------------------------------------------
Los Angeles County Coroner 6 2 1
------------------------------------------------------------------------
Massachusetts 4 2 0
------------------------------------------------------------------------
Medical College of Wisconsin/ 2 1 1
Milwaukee County MEO
------------------------------------------------------------------------
Medical University of South 1 1 1
Carolina
------------------------------------------------------------------------
Miami-Dade County Medical 4 4 4
Examiner Department
------------------------------------------------------------------------
Montgomery County Coroner's 1 0 0
Office (Ohio)
------------------------------------------------------------------------
New York City Office of Chief 4 4 4
Medical Examiners
------------------------------------------------------------------------
Office of the Chief Medical 4 3 3
Examiner's--State of Maryland
------------------------------------------------------------------------
Office of the Medical Examiner 2 2 0
Metro Nashville/Davidson County
------------------------------------------------------------------------
Puerto Rico 0 0 0
------------------------------------------------------------------------
Saint Louis University 1 1 1
------------------------------------------------------------------------
San Diego County Medical Examiner 2 1 1
------------------------------------------------------------------------
Seattle-King County 2 1 0
------------------------------------------------------------------------
Southwestern Institute of 3 2 2
Forensic Sciences
------------------------------------------------------------------------
Tarrant County Medical Examiner's 1 1 1
District
------------------------------------------------------------------------
UNC Hospitals 2 1 2
------------------------------------------------------------------------
University of Alabama at 1 1 0
Birmingham
------------------------------------------------------------------------
University of Colorado Denver 1 1 1
------------------------------------------------------------------------
University of Louisville 1 1 1
------------------------------------------------------------------------
University of New Mexico 4 4 4
------------------------------------------------------------------------
University of South Florida 2 1 1
------------------------------------------------------------------------
VCU-Richmond 4 4 3
------------------------------------------------------------------------
Wake Forest University School of 1 1 1
Medicine
------------------------------------------------------------------------
Wayne County Medical Examiner 2 1 1
(Detroit)
------------------------------------------------------------------------
TOTAL 77 52 42
------------------------------------------------------------------------
Thus, only 68 percent of approved positions are funded, and 81
percent of the funded positions are filled with a total of 42 fellows
this year. 8 of the 35 programs (23 percent) have no fellow this year.
The Chairman. Thank you, sir, very much.
Ms. Jill Spriggs, Secretary, Consortium of Forensic Science
Organizations.
STATEMENT OF JILL SPRIGGS, SECRETARY, CONSORTIUM OF FORENSIC
SCIENCE ORGANIZATIONS
Ms. Spriggs. Mr. Chairman, Ranking Member Thune, and
members of the Committee, thank you for asking me to testify
before this committee on matters of forensic science.
My name is Jill Spriggs, and I am the Crime Laboratory
Director for the Office of the District Attorney, Sacramento
County Laboratory of Forensic Services. I am also the past
President of the American Society of Crime Laboratory
Directors. In my career, I have overseen the daily operations
of both a state and local crime laboratory, so I come from that
unique perspective.
Today I am here representing the Consortium of Forensic
Science Organizations, or CFSO, which represents over 12,000
forensic service providers.
As you know, the National Academies released in February
2009 a report on the state of forensic science in this nation.
This report distills down to two operational and scientific
needs: one, standardization in education, training, and
forensic science delivery; two, resources across the forensic
science community.
In fact, the forensic science provider community requested
Federal legislation to provide guidance and leadership to our
community in response to this report. And still, 4 years later,
this has not happened. In the absence of legislation, the
Executive Branch has taken numerous efforts to reshape forensic
science, such as the creation of the National Commission on
Forensic Science.
I would like to take this opportunity to lay out for this
committee what we believe to be the greatest challenges facing
the forensic community and solutions to solve them.
First, while we do believe the Federal Government should be
involved in state and local forensic science to maintain
consistency and guidance, we do not believe a Federal oversight
organization should be created. While the work the crime
laboratory performs is ultimately the same, differences among
state jurisdictions need to be considered, and there is not a
one-size-fits-all approach.
We believe and strongly support the creation of an office
of forensic science in the Department of Justice to coordinate
and lead on matters of accreditation, training, education,
certification, and resource allocation.
Second, many seem to believe there currently exist no
standards on training or education in forensic science. There
are currently 22 scientific working groups, or SWGs, who build
consensus standards in the specific forensic disciplines they
represent, as well as training guidelines and improvement in
practices in the disciplines themselves.
Federal, state, and local forensic scientists and other
experts are represented on these SWGs, as well as academia,
attorneys, judges, private laboratory scientists, and
independent consultants. Historically, these SWGs have operated
on very slim budgets and have succeeded in bringing to the
forensic disciplines the much-needed structure.
Why is the administration budgeting a program to create
working groups that many believe will undo the work of the
SWGs? An inordinate amount of money to start over is being
proposed in the 2014 Federal budget. CFSO supports NIST
advising the SWG groups in order to give the SWGs the much-
needed support, but to start over and reinvent the wheel is not
needed and costly. This will prove extremely disruptive to the
scientific community, as it waits for years for new standards
to be disseminated and vetted.
Third, research is an absolutely critical part of how we
advance our science, as forensic science is just that, a
science. Research is critical, but it has to be in the context
of the requirements of the forensic science community. What is
needed in the forensic science community is applied science,
and by that I mean science that is taken from basic research so
it can be applied in the crime laboratory.
Fourth, capacity-building funds. Crime laboratories use the
availability of Coverdell funding to aid in funding the non-DNA
disciplines in training, backlog reduction, and the purchase of
equipment. While Coverdell has been authorized at $35 million,
in the last few years crime laboratories have received less
than half of this money. And, indeed, in the 2014 budget,
Coverdell has zero allocation. We are frustrated by the lack of
attention to our significant backlogs in non-DNA disciplines,
such as drugs, toxicology, and latent prints.
Fifth, while we support the role of NIST in advancing
standards and the role of the NSF in research, we remain
convinced that the Department of Justice must remain involved
in this process and provide the leadership to ensure that the
science, standards, training, and education are not only
applicable to the mission of providing scientific analysis to
the criminal justice system but able to ensure that the grants
meet the needs of the community.
We believe the argument that forensics should be removed
from law enforcement gets confused with how the crime
laboratories should be led. We also believe that forensics
should not be removed from law enforcement in its entirety. The
accreditation process protects the administrative independence
of laboratories.
Mr. Chairman, while we are optimistic about the creation of
the National Commission on Forensic Science, we must admit that
we have concerns after seeing the charter signed by the
Attorney General.
First, the Commission is bound by FACA rules. This would
mean state and locals do not have a voice in regards to any
outcomes from the Commission.
Second, it will not be developing or recommending guidance
regarding digital evidence. Is digital evidence not as
important a forensic discipline as DNA analysis? Digital
evidence includes the analysis of cell phones and computers.
Most of these cases involve homicides, sexual assaults, and
white-collar crime.
Should digital evidence not be accredited, adhere to
quality assurance systems, or receive training, and is research
not important? Currently, digital evidence is seen as forensic
in nature and includes its own Scientific Working Group on
Digital Evidence. If it is not considered a forensic
discipline, we will be sitting here 10 years from now
discussing why it was not considered a forensic discipline.
Last, voluntary accreditation for crime labs over the last
several years has increased dramatically. Within the next 3
years, all crime laboratories will fall under ISO 17025, which
include 400 international standards.
CFSO supports mandated accreditation for crime laboratories
in order to ensure standards are adhered to and a quality
product exists, but we are very opposed to starting over. Crime
laboratories ultimately serve the criminal justice system and
the public at large.
Thank you for allowing me to testify today. And, Mr.
Chairman, I will be submitting more detailed reporting for the
record.
[The prepared statement of Ms. Spriggs follows:]
Prepared Statement of Jill Spriggs, Secretary, Consortium of Forensic
Science Organizations
Mr. Chairman, Ranking Member and Members of the Committee:
Thank you for asking me to testify before this Committee on matters
of forensic science. My name is Jill Spriggs and I am the Crime
Laboratory Director for the Office of the District Attorney, Sacramento
County, Laboratory of Forensic Services. I am also the Past President
of the American Society of Crime Laboratory Directors. In my career, I
have overseen the daily operations of both a state and local crime
laboratory. Therefore, I come from a unique perspective where I can
address forensic issues from both a state and local position. Today, I
am here representing the Consortium of Forensic Science Organizations
or CFSO which represents over 12,000 forensic science providers.
As you know, the National Academies released in February 2009, a
critique or report on the state of forensic science in this Nation.
This report distills down into two operational and scientific needs:
1. Need for standardization in education, training and forensic
science delivery
2. Need for resources across the forensic science community.
In fact, the forensic science provider community requested Federal
legislation to provide guidance and leadership to our community in
response to this report and still four years later this has not
happened. In the absence of legislation, the Executive Branch has taken
numerous efforts to reshape forensic science such as the creation of
the National Commission on Forensic Science. I would like to take this
opportunity to lay out for this Committee what we believe to be the
greatest challenges facing the forensic community and solutions to
solve them.
First, while we do believe the Federal Government should be
involved in state and local forensic science to maintain consistency
and guidance, we do not believe a Federal oversight organization should
be created. Any solution needs to understand the important role of
state and local labs. While the work the crime laboratory performs is
ultimately the same, differences among the state jurisdictions need to
be considered and there is not a one size fits all approach that will
work. We believe and strongly support the creation of an Office of
Forensic Science in the Department of Justice to coordinate and lead on
such matters of accreditation, training, education, certification and
resource allocation.
Second, many seem to believe there currently exist no standards or
training or education in forensic science. This could not be further
from the truth. There are currently 22 Scientific Working Groups or
SWGs who build consensus standards in the specific forensic disciplines
they represent, as well as training guidelines and improvement in
practices in the disciplines themselves. Federal, state and local
forensic scientists and other experts are represented on the SWGs, as
well as academia, attorneys, judges, private laboratory scientists and
independent consultants. Historically, these SWGs have operated on very
slim budgets and have succeeded in bringing to the forensic disciplines
the much needed structure. Why is the administration budgeting a
program to create working groups that many believe will undo the work
of the SWGs? An inordinate amount of money to start over is being
proposed in the 2014 Federal budget. CFSO supports NIST advising the
SWG groups in order to give the SWGs the much needed support but to
start over and reinvent the wheel is not needed and costly. This will
prove extremely disruptive to the scientific community as it waits
years for new standards to be disseminated and vetted.
Third, research is an absolutely critical part of how we advance
our science as forensic science is just that--a science. Research is
critical but it has to be in the context of all the requirements of the
forensic science community. What is needed in the forensic community is
applied science and by that I mean science that is taken from basic
research so that it can be applied in a crime laboratory.
Fourth, capacity building funds. Crime laboratories use the
availability of Coverdell funding to aid in funding the non-DNA
disciplines in training, backlog reduction and the purchase of
equipment. While Coverdell has been authorized at $35 million, in the
last few years crime laboratories have received less than half of this
money. And indeed in the 2014 budget, Coverdell has a zero allocation.
We applaud the efforts to provide us more resources but we are
frustrated by the lack of attention to our significant backlogs in non-
DNA disciplines such as drugs, toxicology and latent prints.
Fifth, while we support the role of NIST in advancing standards and
the role of the NSF in research, we remain convinced that the
Department of Justice must remain involved in this process and provide
the leadership to ensure that the science, standards, training and
education are not only applicable to the mission of providing
scientific analysis to the criminal justice system but also to ensure
that the grants meet the needs of the community. We believe the
argument that forensics should be removed from law enforcement gets
confused with how the crime laboratory should be led. We also believe
that forensics should not be removed from law enforcement in its
entirety. The accreditation process protects the administrative
independence of laboratories.
Mr. Chairman, while we are optimistic about the creation of a
National Commission on Forensic Science we must admit that we have
concerns after seeing the Charter signed by the Attorney General.
First, the Commission is bound by FACA rules. This would mean State and
Locals do not have a voice in regards to any outcomes from the
Commission. Second, it will not be developing or recommending guidance
regarding digital evidence. Is digital evidence not as important a
forensic discipline as DNA analysis? Digital evidence includes the
analysis of cell phones and computers. Most of these cases involve
homicides, sexual assaults and white collar crime. Should digital
evidence not be accredited, adhere to a quality assurance system or
receive training and is research not important? Currently, digital
evidence is seen as ``forensic'' in nature and includes its own
Scientific Working Group on Digital Evidence (SWGDE). If it is not
considered a forensic discipline, we will be sitting here ten years
from now discussing why it was not considered a forensic discipline.
Further, in the past year, several news articles have been written
regarding the state of forensic science, including many this week. As
we have stated earlier forensic science, like any science, evolves and
advances. With the more widespread use of DNA analysis over the last
15-20 years, the incidence of exonerations should decline over time.
The advances in DNA are phenomenal as opposed to the old ABO Typing in
which 45 percent of the population had Type O blood.
Lastly, voluntary accreditation for crime labs over the last
several years has increased dramatically. Within the next three years,
all laboratories will fall under ISO 17025 which include over 400
international standards. With ISO 17025 accreditation, cradle to grave
documentation exists in crime laboratories where it did not before.
CFSO supports mandated accreditation for crime laboratories in order to
ensure standards are adhered to and a quality product exists but we are
very opposed to starting all over. We should begin with what we have
and advance it with the science.
Crime laboratories ultimately serve the criminal justice system and
the public at large. The public deserves the best a crime laboratory
has to offer and assurance the work coming out of crime laboratories is
of the highest quality. Thank you for allowing me to testify today.
The Chairman. Thank you very much.
Maybe I should just take from what Ms. Spriggs said and
maybe get to the heart of the matter.
There seems to be a general rejection by you of a national
commission, a sense that you can't apply one standard to all
situations and it is not a cookie-cutter business. That is the
same argument they used in the health-care bill, and of course
they are probably correct in that.
But I had thought in my interest in forensics that--and our
state university is working really, really hard on this--that
there are some things which have to be deemed to be true or
untrue, accurate or inaccurate, scientific or unscientific, no
matter whether they are done in Charleston, West Virginia, or
in Tuscaloosa, Alabama--in other words, that science is
science.
You would argue, perhaps, that a hair follicle is subject
to local scientific analysis from the law enforcement folks and
that there is not much that a national forensics commission--I
just want to get into this subject, because there seems to be
tension between the two. Not between the first three witnesses,
but between you, ma'am, and the idea that the truth in
forensics varies, can vary and should vary, according to where
it is done, which was not my understanding of what at least I
had to say and my understanding of what others had to say.
Could any of you sort of discuss that?
Mr. Bromwich. Well, let me start.
I agree with you; there is only one set of scientific
standards, validated by basic and applied research. And we
shouldn't have a Federal system where you have different
standards that are applied because of where a crime arises. I
am not sure that is what Dr. Spriggs was saying, but if it was,
I disagree with that.
I do think that there is a crying need for Federal
leadership and funding on these issues, particularly in the
area of basic research, applied research, standards-setting,
and so forth. And I do disagree with Dr. Spriggs that basic
research needn't play a huge role in this. She stressed applied
research. You need both.
I think some of the disciplines that we all took for
granted and that we viewed as telling the truth, like
fingerprint analysis, have been under attack recently because
they have been found not to be as foolproof as we thought.
There was the highly publicized case about a decade ago
involving Mr. Mayfield from Oregon, where the FBI misidentified
Mr. Mayfield as the source of a print in a terrorism case.
So I think there is an absolutely pressing need for both
applied research but also basic research and standards-setting
on a national level.
The Chairman. Does one have to choose one mode or the
other? Are they meldable, or are they not?
Mr. Bromwich. Talking about basic research and applied
research?
The Chairman. Yes.
Mr. Bromwich. You need both. You absolutely need both.
The Chairman. Anybody else care to--you know what I am----
Ms. Spriggs. I----
The Chairman.--getting at. I have so many examples, as I am
sure that the other Senators here do too, of where you have
constituencies or organizations which traditionally --I mean,
for example, I remember in West Virginia when I was Governor,
one of the hardest things was to get counties to agree on basic
practices of what sheriffs did. It was just really hard.
Everybody had their own way of doing things, and they stuck
with those things.
And, I mean, we built an academy for training sheriffs and
put up all 55 of their county badges and all kinds of things to
try to create goodwill and cooperation. And now there is a lot
less of that competition and an understanding that there are
sort of common standards that need to be adhered to.
I don't want to over-stress my point, and I am certainly
using up my time. But I just felt in you, Ms. Spriggs, a sense
that, well, our budget got cut here and our budget got cut
there. And everybody is getting cut everywhere--everybody. And
that you don't want to have a national commission.
What is dangerous about a national commission to you?
Ms. Spriggs. First, let me start with the standards. I am
sorry if I have been confusing.
If analysis is performed--let's take, for example, drug
analysis. Whether it is performed in Sacramento County on a
white powder such as cocaine versus the analysis performed in
Florida, the basic analysis is still the same.
What the one-size-does-not-fit-all goes to is the state
jurisdictions and what they would see as a reasonable quantity
of cocaine. So that is what I mean by a one-size-does-not-fit-
all.
The Chairman. Yes, I don't know how that fits into
forensics.
But, in any event, my time is gone, and Senator Thune.
Senator Thune. Thank you, Mr. Chairman.
And I want to just kind of follow up on that. But, Ms.
Spriggs, in your testimony you expressed concerns about the
charter for the new national commission. And, again, I would
just ask you if you could elaborate a little bit on those
concerns, specifically with regard to the participation
opportunities for state and local practitioners.
Ms. Spriggs. We do applaud the Executive Branch for taking
a leadership role in the National Commission on Forensic
Science, although we feel that it would be best to have an
office of forensic science under the Department of Justice,
since that is a judicial system where we apply forensics.
But with the issue of the National Commission, where we see
two key, important things that concern us are: one, the imposed
FACA rules.
This means that state and locals will not have a way of
vetting what comes out of that Commission. So when you talk
about research and you talk about presenting research and you
present it to different conferences, what you are doing is you
are getting feedback from other parties so that you can have
questions regarding the research. This is not going to happen
on anything that comes out of those commissions because of the
FACA rules imposed on that for state and local communities. We
want to see what comes out of that Commission and vet it before
it is imposed.
Second, we feel strongly regarding digital evidence.
Digital evidence, under that charter, will not be looked at as
a forensic discipline.
If you look at the crime laboratories across the country,
digital evidence is one of the places where we have a backlog
of cases. It is one of the booming things that we see in our
forensic caseload. I believe the Netherlands paper also talked
about that. So not to include that as far as research,
training, standards-setting, to us, brings harm to the
discipline of digital evidence.
Senator Thune. To your knowledge, how much does it cost to
operate the scientific working groups at DOJ?
Ms. Spriggs. Approximately $150,000 was the cost to operate
the Scientific Working Group on the DNA Analysis Methods.
Senator Thune. And how does that compare to the funding the
administration has proposed for NIST to do its own standards-
related work?
Ms. Spriggs. As opposed to funding for NIST, NIST has been
allocated at $3 million, looking at the new budget, if that
were to go through.
Senator Thune. Are those duplicative efforts? I mean, do
they actually serve different or do they serve complementary
purposes?
Ms. Spriggs. They serve differently in that NIST will be
starting scientific guidance groups, which will actually
reinvent and take over those SWGs and redo the standards. And
we feel that while NIST should play a part in SWGs, it should
not take those standards and redo them.
Senator Thune. The National Academies report recommended,
and I quote, that ``forensic science laboratories should be
independent of or autonomous within law enforcement agencies.''
end quote.
How do you foster that sort of administrative independence
at your lab?
Ms. Spriggs. We foster that by ISO accreditation,
accreditation to the ISO 17025 standards. Within those
standards are--and Standard 4.0.
When an assessment or an audit is done, the laboratory will
be looked at in regards to those particular standards. One is,
does everybody understand their role, the parent organization
as well as the crime laboratory? Two, is it an autonomous
relationship? Three, is there undue influence? And four is
policies and procedures, do they identify bias?
We also do this by, every case that goes out the door is
technically reviewed and administratively really reviewed. Do
the results in the case notes support the conclusions?
Also, remember, the notes are also discoverable, as well as
we encourage prosecutors and defense attorneys to sit down with
the crime labs and go through the case before they even go to
court.
Also, one of the other ways that we do it is through,
again, discovery.
So these are just some of the things that we look at so
that there isn't undue influence and bias. We also train our
crime labs in bias. We train them in ethics. That is part of
our accreditation also.
Senator Thune. Mr. Tsin-A-Tsoi, the fragmentation that you
refer to in your testimony seems to be inherent and fundamental
to our country's system of state and local jurisdictions. How
does the criminal justice system and forensic science
infrastructure in the Netherlands differ from that here in the
United States?
Mr. Tsin-A-Tsoi. Well, it is a small country, Senator.
[Laughter.]
Mr. Tsin-A-Tsoi. That helps.
But also we do have other organizations within the
Netherlands that do forensic investigations. The NFI, though,
is the prime service provider, so to speak, for law enforcement
agencies. We are, however, independent of them. And we also do
cases for other countries, and we also do cases for other
government agencies than just the law enforcement agencies.
Senator Thune. Can you describe what you have done with
NIST on behalf of the NFI?
Mr. Tsin-A-Tsoi. Well, actually, that is just starting up
right now. And, actually, later this week or next week, we will
have discussions with them.
Senator Thune. OK.
Mr. Tsin-A-Tsoi. Yes.
Senator Thune. But there is a Memorandum of Understanding
on that effort?
Mr. Tsin-A-Tsoi. Yes.
Senator Thune. So that hasn't really gotten under way yet
or commenced.
Mr. Tsin-A-Tsoi. Well, we have to define what exactly we
are going to do about standards-setting. From our point of
view, as a forensic community, we have a standards problem. And
we want to solve that and want to work on that very hard. And
we know that NIST is an absolutely top-notch organization, the
state-of-the-art worldwide, and this is why we tried to get in
contact with them. And they were interested, as well.
Senator Thune. OK. Thank you.
Mr. Chairman, my time has expired. Thank you.
The Chairman. Thank you, Senator Thune.
Senator Chiesa?
STATEMENT OF HON. JEFF CHIESA,
U.S. SENATOR FROM NEW JERSEY
Senator Chiesa. Thank you, Mr. Chairman.
And thank all of you for your testimony.
I know in my own experience of the great pains that the law
enforcement community takes to make sure that they get it
right. The law enforcement community is there to keep us safe.
And I know that anytime you bring a charge against anybody, you
really need to have all of your evidence in order and you have
to have drawn a conclusion that the case should be brought,
because whether or not the case is proven, you have altered
that person's life for good.
And I know there is no suggestion here that there is not
excellent work being done, but that work, in my experience, has
been of the highest quality. I have been extremely proud,
whether it was with the FBI or with the state police in New
Jersey, extremely proud to work with those law enforcement
communities.
But I know that we can always try to strive for a better
result and a more complete result and one that reminds the
public and ensures the public's trust in the kinds of results
that we are getting.
I think Senator Thune made an excellent point earlier, too.
And that is, to some extent, scientific evidence, when you call
it scientific, can overwhelm the case from the start. Because
if a scientist gets up and takes the witness stand, there is a
status that that witness has that is different than a lay
witness who says, I saw somebody do something.
And I think there is an expectation now, because of the way
the cases are portrayed on TV, that if you have three witnesses
that saw a crime committed, where is your fingerprint expert,
where is your DNA expert? As you know, those are costly things
that you can't do in every case. So I understand the balance
and the things that have to go into these issues as we develop
them.
So let's start with Mr. Bromwich. You talked about
investigations that you were involved in. I know you spent part
of your life in the world of a prosecutor. What is your sense
of the strides that have been made since the investigation in
Houston in 1994 to the present? Are we making the kinds of
strides you think that are making a difference?
And is the level of commitment here what it should be so
that when we bring scientific evidence into a case, with the
kind of weight that it carries, that it is being brought in an
appropriate and a complete way?
Mr. Bromwich. Senator, has progress been made in the last
20 years? Undoubtedly, I think in part through the awareness of
the way things can go wrong if they are not done right.
But are we where we need to be? No. All you have to do is
pick up the newspaper to see about crime lab problems that have
arisen just recently in Texas, in Minnesota, in Massachusetts,
in New York. They just happen too frequently.
And as you know because you were a prosecutor, if an
examiner has been found to do bad work in one case or engaged
in intentional misconduct in one case, that imperils scores of
cases. They are going through that right now in Massachusetts,
where they had a drug examiner, and they are having to
reexamine literally thousands of cases.
When I was a prosecutor a long time ago, even before you
were, putting in scientific evidence was viewed as routine,
almost automatic. We viewed the expert witnesses as our coaches
and tutors, and they told us what to ask them and they gave us
what their answers would be.
We are removed from that but not far enough removed from
that. And by that I mean there is a tremendous amount of
additional education that needs to go on to train prosecutors,
to train defense counsel, to train judges in some of the basics
of forensics.
In our Houston investigation, 2005 to 2007, we found that
defense counsel almost never challenged forensic experts, even
when there was a lot of information in the public sector
suggesting that they were doing----
Senator Chiesa. That is a little bit of a separate issue,
though, right? I mean, that is on the obligation of the defense
counsel. And I appreciate everything you are saying. I am going
to run out of time in a minute.
When we view these cases retrospectively and you talk about
the things that you are talking about, someone acting for the
wrong, fraudulent motive, whatever it is, someone acting
incompetently, I think those are different things, right?
Someone is motivated by, I want to--there is a horrific crime
that occurs; there is enormous pressure on the prosecutor to
stay the fears in that community.
When you talk about these national standards, are they
getting at the training that these folks are going to get?
Because I know--and maybe Ms. Spriggs can talk to this, as
well--what you worry about when you are bringing cases is, is
my evidence going to get to me when I get to trial, whether it
is a speedy trial issue so your case has to be brought in a
certain amount of time.
So are there any concerns that these national standards are
going to create delays that the defense counsel may use then to
put further pressure on prosecutors that they are not bringing
their cases fast enough?
Mr. Bromwich. I don't have that concern, Senator. I think
the work is going to continue to be done at the local level,
and the speed will be the same.
Senator Chiesa. Thank you, Mr. Chairman. My time is up.
The Chairman. You are welcome. And you are new, so you get
a couple of minutes extra.
[Laughter.]
Senator Chiesa. Well, thank you.
Ms. Spriggs, one of the things I have thought about when
you are saying one size doesn't fit all, if you have a state
like New Jersey, we can centralize a crime lab in one location
and multiple areas of the state can have access to that
location. If I was in a state like Montana, where it is
geographically enormous, they may not have the ability to have
one location to do all of those things.
Is there any concern on your part, in terms of your one
size doesn't fit all, that if we create these national
standards we are going to have problems standing up enough
locations to serve different size communities with different
kinds of needs?
Ms. Spriggs. I think with the national standards what we
are talking about is having an underlying national standard.
So, like, right now we have what is called the DNA Advisory
Board standards that every laboratory that is doing DNA in this
country must follow. So those are the standards that we are
talking about, not so much the legal standards as to what is a
usable quantity or things like that.
I can tell you, I oversaw 13 laboratories in California and
I oversaw over 40 counties within California. Each county had
their own jurisdiction with a little bit of how they wanted to
report out results as far as drugs go. Some people thought this
amount was a usable quantity, and some didn't. But the
underlying science of how we got to what that drug was was the
same.
Now, you asked Mr. Bromwich about, is the defense using
these standards to swap out speedy trials and because of the
standards it is taking longer. That is true in some cases. With
the ISO accreditation, we do have cradle-to-grave documentation
now. And a lot of the cases that Mr. Bromwich talked about in
Massachusetts and Minnesota, they are not accredited. They are
not accredited to these international standards, ISO 17025.
Another issue that really needs to be brought up, and it is
one that Dr. Tsoi brought up, is management of a crime
laboratory. While you see a lot of these issues, a lot of these
issues are not so much quality issues, like in Massachusetts
and Minnesota; it is a management issue. It is lack of
management--management looking at backlogs, management in
looking at what are the differences between people who are out
putting cases.
So if I have someone in a drug section who is putting out
50 cases a month but I have someone else putting out 300 cases
a month, that to me is going to query something in my head
that, okay, there is something going on.
So there is another issue here that needs to be brought up,
and that is a lack of management of crime laboratories. And for
that, remember, we are taking a lot of bench scientists and
putting them in as managers who sometimes don't have the
qualifications to be a manager or to look at backlogs, look at
statistics, how much is a case costing per case, things like
that.
Senator Chiesa. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Senator Warner?
STATEMENT OF HON. MARK WARNER,
U.S. SENATOR FROM VIRGINIA
Senator Warner. Thank you, Mr. Chairman. Appreciate you
holding this hearing. I don't know a lot about this subject. I
know you have had a great deal of interest.
But I am actually asking for an update, because when I was
Governor, I had two remarkable circumstances. One that I think
has actually become somewhat known in the science, the one with
Mary Jane Burton, a woman in our lab who had literally attached
DNA swabs to thousands of cases that she had worked on before
DNA evidence had moved ahead. And suddenly we discovered this,
and, you know, what do you do with it?
We went out and finally went back and checked all those
cases, exonerated a number of people. We found, actually, that
there were then--and I would be curious for your commentary on
this--people had been exonerated, but there was no procedure in
place to make sure that information, if it got to the
prosecution, actually got relayed then back to the person who
potentially was exonerated.
We had a similar case that was even higher-profile where,
actually, somebody had been executed. The cover of Time
magazine said, this man is innocent. People had spent years
trying to prove his innocence.
And as a supporter of the death penalty, and any Governor
who has gone through that most ultimate decision, there was DNA
evidence that retained, there was question about chain of
custody, and the question of, do you go back and retest years
later after the execution and reopen that? I thought, as
someone who had made that ultimate decision, not on this
individual, but you had to retest. It ended up proving the
guilt of the individual.
But I just wonder whether these procedures--this was 7, 8,
9 years ago on these cases--you still read about this stuff,
Senator, as you mentioned. But have the procedures moved
forward where there are kind of accepted codes of conduct?
And I heard from my staff that there was some question
about national versus local standards. I would hope that would
be about procedural standards, not about national versus local
science. The science ought to be science, and we should not be
afraid of where that evidence leads us.
So I hope somebody can clear up my staff's comments to me,
one, about the distinction, that if there is a debate between a
national standard versus a local standard, that that is about
procedures. I actually believe that this should be looked at on
a national basis and science ought to trump all. But there is
not a question about the underlying science in terms of
different standards, are there?
And then, second, have some of these, you know---- because
these incidents are kind of a little bit worn off, I think you
would need to have some level of national procedures because
you would want to have that guidance if it becomes a case of
first instance.
A bit of a rambling question, I know.
Mr. Bromwich. Let me answer the second part of your
question first. And you are really alluding to situations where
problems are discovered, either with the work of a particular
analyst or a particular type of analysis, what kind of system
is in place to inform the relevant people, namely defendants
and defense counsel, that they might have an issue that they
need to do something about.
I think it is getting better in some respects, but there
are still noteworthy instances where things don't work the way
they should. So, for example, I mentioned at the outset the
investigation my agency did of the FBI Lab back in the period
of 1995 to 1997. The Justice Department set up a task force
within the department whose task was to review cases worked by
the examiners whose competence and conduct we are reviewed
during our investigation.
In a series of articles in The Washington Post within the
last 6 months or so, it was disclosed that, in fact, that work
didn't get pushed forward, that defense counsel were not
notified in a systematic way. And, in fact, that process is now
the subject of a follow up inspector general review.
I like to think that is not typical, but it happens. And I
think one of the things that every jurisdiction, national,
state, and local, needs to do is when examples of this come to
light, there has to be a sustained, coherent process to make
sure that the relevant people are notified. That doesn't happen
enough.
Senator Warner. Are you saying there is not even kind of
the protocol standards, even if they are not legally
enforceable, that are kind of viewed as traditional or accepted
rules of the road, in effect, in terms of process or protocol?
Mr. Bromwich. There are post-conviction processes in all 50
states, and they differ. But I think the kind of situation you
faced when you were Governor of Virginia, how do you deal with
a particular examiner who did something they shouldn't have
done, how do you followup, what kinds of testing do you do,
what kind of notification process, that is not at all
standardized.
And I think in each instance when it comes up it is treated
as a one-off by whatever jurisdiction is dealing with it. It is
unfortunate, but I think it is true.
Ms. Spriggs. May I add a comment?
Senator Warner. Please.
Ms. Spriggs. As far as the case where the swabs were in the
case file, I don't think that would happen today. We have
policies and procedures in place that are part of our
accreditation that talks about what we are to do with evidence,
make sure there is a chain of custody, all of that. As well as,
when an assessor or an auditor comes through, they actually
take case files and take a sampling to make sure that you are
following your policies.
The underlying science that you were talking about is the
same throughout the crime laboratory systems throughout the
nation. The underlying science is the same. So if I have been
confusing in that message, I am sorry.
Senator Warner. But I guess what I would just say, Ms.
Spriggs, is that, you know, in the case of Mary Jane Burton it
was swabs that were discovered in 2003-2004. I, again, caught a
bit of your testimony just as I walked in. You know, that was
then. Today it may not be swabs; today it may be digital. Or
there may be a host of residual information that we are not
fully aware of as the science moves forward.
It would seem to me, even if it was not legally
enforceable, the notion that there ought to be some level of
protocols so that policymakers, prosecutors, others, you know,
don't all kind of see these as cases of first impression. Even
if you don't have to follow the rules, it just seems to me
would make some sense, and it would make some sense if you had
some national effort to try to at least inform those
policymakers.
So I sure as heck would love to have had in both cases,
both in the reexamining of the already-executed individual and
the case of Mary Jane Burton, someplace to look. I think I got
to the right decision point, but I would have liked to have had
some guidance. I could have gotten through a lot less sleepless
nights, particularly on the reopening of the case of the
executed individual.
Ms. Spriggs. One other item that was brought up, I think by
Mr. Bromwich, was, when there is an issue in a crime
laboratory, you do have an obligation to notify not only the
prosecutor but you do have an obligation to notify the defense.
So when there is an issue in a crime laboratory--let's say
there is a mix-up of samples. Because of our ISO accreditation,
we do what is called a CAR, a corrective action request, where
we follow through. We go back and we look at prior cases; we
notify the prosecutor on those cases. Part of that corrective
action is notification to the defense community that you have
this issue in your laboratory.
And all of that is looked at when an auditor comes in or
assessor comes in to do your accreditation.
Senator Warner. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warner.
There is not much that Senator Warner doesn't know a lot
about.
[Laughter.]
The Chairman. I say that sincerely and with respect, as I
hope you know.
I am going to do something I have never done before. It is
like we are stuck on a record here; it keeps playing the same
music.
And to be honest with you, Ms. Spriggs, I have the feeling
that you--see, on the one hand, you just in the last answer to
Senator Warner, you said science has to be science all over the
country. And when I heard that, I had a good feeling.
More or less everything else you have said, it sounds to me
like you are trying to protect a group which you represent as a
lobbyist, so to speak, from having to change. Because people
genuinely don't like change. That is true in the human race.
And you are talking about budget cuts and process and
management and backlogs, all of which are very important. But,
to me, the basic question of this hearing, is that science has
to be agreed on and that has to be acceptable in every county
in every state all over the country, not because there is a law
that says there has to be, but it doesn't make any sense for it
not to be that way. As Senator Warner said, science is science.
And I think what the question is--I mean, this fellow,
Harry Edwards--you claim that the FBI, Ms. Spriggs, that the
FBI's SWGs, as you said--actually, it is more helpful to us if
you say ``scientific working groups''----effectively develop
standards and guidelines for the forensic science disciplines,
and there are experts who disagree with you.
Judge Harry Edwards, who was one of the leading authors of
the report which I held up, has stated that SWGs are of
questionable value. He says that, among other problems, SWGs do
not meet regularly, their standards are too vague, and they
don't try to determine if anybody is actually implementing
their recommendations. Now, I have no idea whether that is true
or not, but he is a leading Federal judge and he is a leading
expert on forensic evidence.
So I am a little bit in a state of confusion. Because when
you say science has to be science everywhere, my head would
nod. And, to me, that is what this hearing is about. But I may
be missing something.
You, sir, are not saying much.
[Laughter.]
The Chairman. So what I would like to have during my time,
and I may add on it a couple minutes--that is really the reason
I gave him 2 extra minutes.
[Laughter.]
The Chairman. Kind of duke it out amongst you. What is the
problem here? What is the basic disagreement?
Dr. Schmunk. Senator, since you did look at me, I will
respond from the medical examiner community.
Our issue is not so much that--I think many of the crime
labs have wonderful accreditation standards. Our problem
throughout the country is there are no standards and there are
no accreditations for the vast majority of offices in this
country.
So keep in mind that the medical examiner, in at least a
death case, is going to be the one that collects the specimens
that we send to the crime lab. If there is no coherent policy
to collect DNA, if there is no coherent policy to collect
fingernail scrapings, for example, then the crime labs will
have nothing to work with.
So my problem with the medical examiner situation is that
we have most of the offices in the country that are working
under policies that have been developed in their own offices,
but there are no accreditation standards that they follow.
The Chairman. And you are not saying that just from an
academic point of view. You are saying it from an accuracy-
times-accuracy point of view.
Dr. Schmunk. Correct.
The Chairman. Yes.
Our Netherlands expert?
I am just trying to find out what I thought this was going
to be about as a hearing and what it turns out it may be about
as a hearing. I need to get that settled. I have all these
questions I want to ask, but I can't get past this. Maybe it is
my limitation.
Please, sir.
Mr. Tsin-A-Tsoi. I am not a forensic scientist by
background, by training. I do have a physics Ph.D., but I
joined this sector just 6 years ago when I became CEO.
What I noticed was that, really, it is a rather closed
field, a rather protective-of-itself field. And I think that is
probably one of the reasons that these discussions lead to some
resistance within the field. And I had this resistance within
our own organization as well, in the beginning especially.
Also, yes, some forensic disciplines are really
fundamentally subjective right at the moment. They depend very
much on the judgment of individual professionals. And, in the
past and maybe still, that is something that is tacitly
welcomed by some of these professionals, because, you know, it
places a very large premium on their personal opinion on the
case.
And saying that their work is not scientific--because that
is, then, what you are saying, isn't it? What we are saying
here, almost all of us, is that, well, you know, maybe some of
the work you have done in the past presenting yourself as a
scientist is maybe not so scientific after all. And that is a
big thing to say. That might also play a role in this. And,
actually, let me put it like this. In the Netherlands, in my
institute, yes, this has played a big role, in the beginning
especially.
And also, a final point: The way forensic science came
about was not really as a science maybe from the beginning. It
started out as something extra on top of normal, traditional
investigative methods, and it grew out from that kind of
position. This is the reason probably why many forensic
institutes or forensic laboratories are still part of the
police.
I certainly agree with the statement in the National
Academy of Sciences' report that it is better to have forensic
institutes to be independent of the customers that they serve.
And from the Government's point of view--I don't believe that
people are biased, but, you know, if you are a part of a
specific organization and you work always only for that
organization which has specific tasks in society, that tends to
have a certain influence. It doesn't have to be obvious but it
can be very tacit.
So what I am trying to say here is that forensic science
has not evolved in science, it has evolved in police. And that
has had a very dramatic influence on what we call forensic
science.
Thank you.
The Chairman. So, in a sense, you would say that--oh,
Senator Blumenthal has come in. And he knows everything about
everything.
[Laughter.]
The Chairman. You do. I am glad you came.
I am struggling here as best as I can. I am neither a
lawyer nor a scientist, and I didn't get very good algebra
marks. But I care about this subject immensely.
And, in a sense, then, you are saying that there is a
science, there is an answer. And in a DNA case, maybe that is
true, but in some other--you are not saying that?
OK. Well, whatever.
[Laughter.]
The Chairman. But that it has evolved on a local basis,
therefore in variation.
And as you watch--granted, these are some of the episodes
on television, but as you watch some of these programs, all
kinds of things enter in. I mean, there are political
pressures. Is somebody going to pursue this or pursue that?
Would that mean they would lose their standing? What about a
judge?
You know, I mean, there are a lot of moving parts in a
highly tense world of, if you go to prison, you don't go to
prison, what it is that is used as evidence has to be
absolutely right. And to the extent that science is involved in
that evidence, it has to be absolutely right.
Have I said nothing, or have I said something?
Mr. Bromwich. I think you have said something.
[Laughter.]
Mr. Bromwich. I agree with almost everything that Mr. Tsoi
said. And I am not a forensic scientist, and I am not even a
scientist. But I have learned a lot about the way forensic
science is applied in our forensic labs through the
investigations I talked about at the outset. And I learned it
from forensic scientists who were part of our investigative
teams and who provided me with a lot of insight into the way
forensic science is currently practiced and the way it should
be practiced.
I think there is resistance in the existing forensic
science community because, up until very recently, it was a bit
of a closed guild and it was not subjected to a lot of external
scrutiny. That has changed very substantially with the
development of DNA and the exposure through DNA analysis of
some of the flaws and mistakes that the other forensic sciences
and analysts in those forensic sciences have committed.
So I very much agree with Mr. Tsoi that there is an
insularity to the forensic science community. But that is not
to devalue the hard and good work that many of the people in
the community do. And it is not to suggest, as I think Ms.
Spriggs was doing, that anybody is suggesting that you burn the
current system to the ground.
You are really talking about a house, if you will, whose
foundations are sagging and there are problems with it, and you
want to bolster it, you want to support it, you want to build
firmer foundations for it based on science. Everyone is the
winner if you do that.
Ms. Spriggs. I believe we are pretty much on target, all of
us. And let me explain what I mean.
When you are building a house and it is falling down and
you want to bolster it, what do you do first? You want to check
with the person who owns the house and help them develop the
plans for the new house in case you want to change a room or
you want to do something.
We support the commission. We support national standards.
What we want to do is be a part of those. Right now FACA----
The Chairman. Who says you are not?
Ms. Spriggs. Because rules are imposed on the----
The Chairman. The commission isn't even fully appointed
yet.
Ms. Spriggs. But it is going to be imposed. If you read the
charter, FACA rules are imposed.
We want to be part of the solution. We want to have a place
at the table to give our community a chance to vet. State and
locals need a chance to help develop these standards.
The Chairman. I don't disagree with you. And I have no idea
what a FACA thing is. I hope it is not a dirty word. But I have
no idea what it is, but I----
Mr. Bromwich. Senator, it is----
The Chairman.--don't want you to hide behind it.
Mr. Bromwich. I maybe know too much about FACAs because I
set one up recently at the Department of the Interior. I am not
aware of any limitation on the involvement of state and local
personnel.
The Chairman. Nor am I.
Ms. Spriggs. Well, I can only tell you that when----
The Chairman. Let me just read from--excuse me--from the
Commission charter.
We have gotten way off here, Senator Blumenthal.
He was an attorney general for 29 years, so don't discount
him, all right?
[Laughter.]
The Chairman. This is ``Membership and Designation'': The
Commission will be co-chaired by a senior DOJ official and a
senior NIST official.'' That is both sides. You are with DOJ,
and then others might be with NIST, including me.
``The Commission shall recommend whether the Attorney
General shall endorse guidance and practice guidelines for DOJ
laboratories and forensic-science-related policy initiatives.''
And then, to the point: ``The Commission will consist of
approximately 30 members appointed by the Attorney General in
consultation''--in consultation--``with the Director of
NIST''--OK?--``and co-chairs of the Commission. The Commission
members will be selected to achieve a balance of backgrounds,
experience, viewpoints, expertise, and scientific, legal, law
enforcement, academic, and advocacy professions.''
It is hard to argue that the state and local reps won't be
included in this list. And it is not even done yet.
Ms. Spriggs. If you look at number two under
``authority''----
The Chairman. I am going to call on Senator Blumenthal----
Ms. Spriggs. Oh, I am sorry.
The Chairman.--because I am at 9 minutes, which is a
criminal act.
[Laughter.]
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Mr. Blumenthal. Mr. Chairman, I would be happy to yield to
you to continue----
The Chairman. You can go ahead.
Senator Blumenthal.--your questioning. Thank you.
First of all, let me thank you for having this hearing and
for your dedication to this cause, which, as you have very,
very accurately stated, is really profoundly important to the
quality of justice in our country but also in many, many other
ways.
We had a hearing just days ago on the derailment and
collision of two trains in the Bridgeport area of Connecticut
involving the application of forensic science to determine and
investigate what was the cause, what should be the consequences
in terms of holding either companies or individuals
accountable. So forensic science has far-reaching and profound
effects in our justice system and in many other areas of our
life.
And I want to thank the Chairman for his bill, the Forensic
Science and Standards Act of 2012, which I think advanced this
debate very substantially and, in fact, I think, led to the
creation of the Commission, which was one of the provisions of
the bill, and other progress that I think has flowed from his
focus on this area.
And thank each of you for your dedication to raising the
bar, raising the standard, and assuring that there is more
professionalism.
My view, as a former United States attorney, a prosecutor
for 4\1/2\ years in the Federal courts, and then as Attorney
General of our state of Connecticut, is that the science is, in
fact, progressing. And the best evidence of it is the new
institute at the University of New Haven, which has been headed
by Dr. Henry Lee of New Haven. And I was pleased to recommend
him for the Commission, as a matter of fact.
The Commission and Dr. Lee have been tireless advocates for
making sure that we have proper accreditation and that there
are proficiency tests and certifications created and
standardized in this area. And he was one of the first to
implement laboratory standards so that we avoid some of the
pitfalls that the 2009 report of the National Academy of
Sciences brought to light.
So my question, first of all for Dr. Schmunk, is, how can
we increase the number of trained pathologists devoted to
forensic science? Or, really, to the entire panel if you have
views on this subject, the number of pathologists.
Do we need more residency slots? What can be done to spur
all of the professions involved--it is really
multidisciplinary--to not only recognize but incentivize people
to specialize in this area?
Dr. Schmunk. I will touch on your last point first, and
that is incentivization. And one of the incentives that can be
given--a medical examiner is basically a public servant, and
loan forgiveness for the enormous amount that each of these
students have for their medical education would go a long way
to convince them to go into medical examiner, forensic
pathology, rather than diagnostic radiology, where they could
make a lot more money but might not have their student loans
forgiven.
We are approaching this, along with the College of American
Pathologists and other professional organizations, from the
ground up. We are encouraging medical students to have
rotations in forensic sciences, all the way up through students
that are currently in pathology residency programs. And so
there are many things that can be done.
One of the problems with the training programs in forensic
pathology, unlike with most graduate medical education, which
has been a problem with funding throughout the past several
years in general but especially with regard to forensic
pathology, many of our training programs do not exist in
institutions where there is Federal money pumped in for
graduate medical education. We are at the county and state
level, and so the money that comes for training has to come
from the local taxpayers.
Senator Blumenthal. Do you think that HHS, the Department
of Health and Human Services, can and should be supporting more
programming that provides those incentives for medical students
to choose forensic pathology at a higher rate?
Dr. Schmunk. Yes. And one of the things that is in my
prepared statement that I think the chair will have a strong
interest in, being on Finance, is that there is an issue with
payment for death investigations and autopsies. Many years ago,
the accreditation council removed the requirement of 20 percent
autopsies. So, basically, we are now down to less than 10
percent of deaths in the country are autopsied, and most of
those are done by forensic pathologists in medical examiner and
coroner systems.
If the autopsy was a compensable expense to these
hospitals, which it is not currently--one of the very few
things that Medicare will not pay for is an autopsy. Once you
are dead, the Federal Government pretty much does not care
about you.
If we would put money into Medicare and convince private
insurance to pay for autopsies as a quality assurance measure,
which we know it is, that would go a long way to funding many
of these programs, including the education of our physicians
into forensic pathology.
Senator Blumenthal. Very interesting point.
Any other observations on that question?
Mr. Bromwich. I think it is a broader problem than just
pathologists. I think there is a pressing need to provide
various kinds of incentives, financial incentives, student loan
forgiveness, for the full range of forensic scientists. We need
to attract the best and the brightest into these fields, and
although things have gotten better, it is not happening enough.
Senator Blumenthal. Well, my time has expired. I will be
submitting a number of questions for the record and hope that
perhaps you can answer them in writing.
But I really do appreciate your being here. This area is
enormously important.
And one of the questions I am going to be submitting is
whether there ought to be a Federal agency--and I know that the
chairman has asked this question--a Federal agency that
oversees the creation of standards and application of
forensics. And what drives innovation? A separate question,
what drives innovation in this field of forensics? And whether
there is a need for public funding in this area.
So thank you very much.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal.
Senator Ayotte, can I make one little peep----
Senator Ayotte. Of course.
The Chairman.--and then call right on you?
Senator Ayotte. You can peep.
[Laughter.]
The Chairman. All right, here is my little peep.
This sort of reminds me of our 4-year, totally unsuccessful
to this point, but ultimately it will be, trying to sort out
cybersecurity. And cybersecurity has long since displaced al
Qaeda as our number one national security threat, et cetera, et
cetera, et cetera. It is overwhelming. As the FBI director
said, it is the greatest transfer of wealth in the history of
the world, as people clean out all of our bank files and
information files.
Anyway, one of the things that is agreed on, although the
approach to it is not yet agreed on, is that there has to be a
private-public partnership in which NIST encourages and is the
enabler, not the decider, but enables, encourages people to
come together.
Because, as it turns out, a lot of the major companies that
are getting clobbered by hacking don't do anything about it
because they don't want it known because it might, you know,
affect their stock position or whatever. And it is terribly
serious. And we go back and forth, and it becomes almost a
little bit, you know, ideology. And it shouldn't be.
I do think there is generally agreement that NIST, which as
you say, Doctor, is this extraordinarily brilliant and
misunderstood Federal agency, that there is a feeling that they
should be the ones who convene, enable the public and the
private to get together to figure out what are the best ways to
put up walls of protection to secure their patents and
everything else. And as they put up walls, others will put up
higher walls, and then higher and higher you go.
But there has to be a system for that, and somebody has to
decide what is a proper standard that somebody needs to meet to
say that--and this gets into liability and all kinds of other
questions. But it is tricky stuff, but it is desperately
important, and we are not grappling with it. And that is
frustrating to me, and I am sure it is to my two colleagues
here also.
So, I mean, there is a lot of stuff here where you get down
to, what is a basic standard, what constitutes a basic
standard? How much does one adhere to something called science?
And, with that, I will be quiet and turn to Senator Ayotte.
STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte. Thank you, Mr. Chairman.
I want to thank the witnesses for being here.
I was a murder prosecutor. And, Mr. Bromwich, I know you
are a former prosecutor. The issue of forensics is very
important to the strength of any case, and the validity of
forensics is incredibly important to the integrity of the
justice system in terms of determining whether a charge will be
brought and for providing information to juries so they can
decide on the guilt or innocence of individuals.
I certainly, having been a prosecutor, want the juries to
focus on the facts of the case. And there is always a lot of
time, there can be a lot of time spent, obviously, on cross-
examination on issues like certification.
I had a case where it was a very high profile murder case,
and I had to defend our lab because they were in certification
process but they hadn't completed it. They were going through
the ASCLD certification but just hadn't completed it. And they
now have completed it, and I am very proud of our laboratory.
So I fully appreciate the importance of certification in
the context of even why good laboratories want to voluntarily
undertake it.
In the context of thinking about developing national
standards, you know, help me understand, do you think that
mandatory certification would be more effective? Is there now
also an incentive for voluntary certification?
And the one thing that I am hearing, that, you know, we
talked to my laboratory director about it, and I am very
conscious about this, is that if we impose unfunded mandates on
the states on this issue, that we could actually diminish
resources that they need in other capacities in the criminal
justice system. And I think that is a big challenge.
So I wanted to get your thoughts on those issues, and
anyone else who would like to comment. Because this idea of
hurting the justice system by imposing requirements that we are
not going to back up here, where we are saying it is the
national standard and you have to do it, and then they don't
have the resources allocated and we don't give them resources.
So resources are always an issue in all of these cases, as
you know. They temper what we are able to prosecute. They
temper what cases we are able to investigate and the choices
that we have to make in cases.
So I will leave that to you, Mr. Bromwich.
Mr. Bromwich. Senator, it is a big problem, and it is a
fair question. I think unfunded mandates in this area are
particularly tricky and dangerous given the chronic
underfunding of crime labs generally. So I think that is
something we need to worry about.
I am in favor of building up the standards through, among
other things, the creation of a National Forensic Science
Commission that we have been discussing a little bit here
today. I do think there is a problem, and we discussed this
back and forth before you got here, about the risk of having
different standards and, in effect, different science applied
in different jurisdictions. I don't think anybody wants that.
That is not a desirable thing to have.
And I think it is in everyone's interest to have
certification, to have proficiency training, to have
accreditation. I think voluntary accreditation has improved
things. No one should view a lab that is accredited as one that
is going to be guaranteed to be free of problems. That is not
what anybody who is part of the lab accreditation process will
ever argue.
But I think it is in everyone's interest to continue to
build up the scientific basis of the disciplines that forensic
scientists use in a laboratory and testify about in court. That
is what I understand the chairman has been trying to do through
his legislation introduced last session and that he is going to
introduce again.
It is harder for forensic scientists than it used to be,
but that is not a bad thing. When I was a prosecutor a very
long time ago, we received the information the forensic
scientists gave us as words from God. And the information that
was conveyed in reports and testimony was never challenged,
ever, even when it should have been. And I did some
investigations, including one in Houston, where the entire
criminal defense bar admitted that it just collectively lay
down and never challenged unfounded, unscientific testimony
that forensic experts were giving.
So there are additional hardships now. The world of
practicing criminal defense law is different because people
realize that some of these techniques can and should be
challenged. But I would argue that is a good thing, not a bad
thing.
Senator Ayotte. I agree with that. I mean, I think that is
why we have the Daubert standard, that is why we have vigorous
cross-examination.
It is just trying to figure out where--when I served as
Attorney General, and then before that being a murder
prosecutor, I mean, I was constantly dealing with my lab on the
issues of resources as a policymaker, not as a prosecutor but
as a policymaker, of how do I get the resources that this lab
really needs?
I am a strong fan of my lab. They voluntary undertook
ASCLD. They have very high standards. I think that they have
integrity, and that is important to the lab. But, that said, it
is always a resource challenge. And so what worries me a little
bit is that we will do all these things in Washington, and then
we will make that challenge even greater. So that is what
concerns me.
And so, I know my time is up, but if I could have just one
minute?
The Chairman. Sure.
Senator Ayotte I just wanted to get your thoughts on this
resource challenge and how it does impact the justice system
and, really, how do we address it?
Ms. Spriggs. I can speak to the resource challenge.
One of the things we do agree on is mandatory
accreditation. In the last probably 4 to 5 years, there is a
new accreditation. It is called ISO 17025. They are
international standards, the same standards that the automobile
industry might use. They are not set by the crime laboratories.
They are international standards.
A lot of the laboratories have----
Senator Ayotte. Yes, I am dating myself. I haven't been in
the courtroom in a while, so----
Ms. Spriggs. That is OK.
A lot of the laboratories have volunteered to get
accredited without the additional resources. So in order for a
laboratory to be accredited, it is a few hundred thousand
dollars per year.
One of the things that helps us in accreditation and helps
us is called Coverdell funding, which there is--it is
authorized for $35 million. In the last few years, we have not
even seen half of that money.
Senator Ayotte. This funding was very important in my
laboratory.
Ms. Spriggs. Very important.
Now, I can tell you from a state perspective, I can tell
you from a local perspective. I came from a state agency that
might get about--I had 450 employees and an $80 million budget
that got about $400,000, $500,000 of that Coverdell funding. I
am now at a local laboratory, where I only get $20,000 of that
funding.
But that $20,000 lets me send people so they can learn
about new research, learn about and do training, go to
conferences, helps with backlogs, helps with all of that. So
even though it is a small amount for my local laboratory now,
it really helps out.
So when you look at the funding, we do need funding because
we took existing funding so that we can get accredited with the
ISO 17025 standards, which are the gold standard, if you want
to call them, of accreditation. So, again, that Coverdell
funding does help us.
Mr. Tsin-A-Tsoi. Can I make a brief remark?
The Chairman. Please.
Mr. Tsin-A-Tsoi. Two brief remarks.
First of all, I would like to say that certification,
especially by ISO rules, is not the same as the scientific
development that we are talking about. Many labs around the
world are ISO-certified, but that has nothing to do with the
fact that the science of forensics is not developed as it
should be.
The second remark I would like to make is that
underfunding, ``underfunding,'' it is just a matter of
perspective. The problem is that there is a supply and demand
problem here. You have enormous demand, an increasing demand
because of technological possibilities of forensic science at
laboratories, and the supply, so the funds that are available
for these labs, are not commensurate to the demand.
And that is because of the way they are funded, not
necessarily because of the size of the funding. What happens
usually is that a lab gets a certain amount of money per year,
for example, and is then supposed to do all the work that is
sent to them for that amount, and that is not possible. Because
for the person asking for the investigation of the lab, it is
for free. Because the lab is there, so you just send in the
DNA, and if you send in twice the total capacity of the lab,
that is it. So then the lab is underfunded.
So this is exactly the situation that we had at the NFI in
the Netherlands. Our caseload grew in 10 years' time six-fold,
but the funding didn't grow six-fold. At a certain point, we
had to--well, this is what I meant in my speech, with a more
businesslike approach to our customer relations. We made a
service-level agreement with our customers which stipulates how
much work we can do in what types of areas. And that helped a
lot.
And, of course, at the beginning this was difficult for the
system as a whole, but in the end everybody is much happier
now.
Mr. Bromwich. This is not really an answer to your
question, Senator, but I--I am sorry.
Senator Ayotte. I just want to make sure it is OK----
The Chairman. Oh, of course it is.
Senator Ayotte. OK.
Mr. Bromwich. I think it is both an amount of resources and
also a predictability of resources.
As you probably know from working with your lab, top lab
managers spend way too much time trying to get grants to keep
their labs going. And that time is taken away from actually
managing their people in the lab.
So I don't have an instant solution to the problem, but I
just want to identify the problem, that it is both a volume of
resources and it is a sustainability and predictability of
resources so that the lab knows what it is going to have to
allocate.
Senator Ayotte. Thank you all. You are right.
And thank you, Mr. Chairman.
I think that is the challenge. They spend a lot of time
trying to figure out where the next funding source, Federal or
otherwise, is going to come from.
Thank you.
The Chairman. Senator Blumenthal?
Senator Blumenthal. I thank Senator Ayotte for her
questions, also as a former prosecutor.
Are there particular areas of forensic science that most
trouble you, in terms of the reliability of testimony--
fingerprinting, obviously bullet analysis has proven
problematic.
If you could identify one, two, three areas that most
trouble you in their use in the courtroom, what would they be?
Mr. Bromwich. For me, hair.
Senator Blumenthal. Hair.
Mr. Bromwich. Paints and polymers. Other kinds of trace
evidence.
Dr. Schmunk. For the medical examiner community, I think it
is clear that it is child abuse prosecutions, head injury and
the science behind that diagnosis.
Senator Blumenthal. Bruises and other physical evidence of
head injury or other child abuse.
Dr. Schmunk. And the hemorrhages in the eyes, the
hemorrhages on the brain, and the tearing of the axons, which
can be problematic, especially if the child survives in the
hospital for some time.
Ms. Spriggs. For me, it would be forensic digital evidence.
And for that reason, because there are a lot of --in
laboratories it is accredited, but outside of laboratories it
is not accredited. There is no chain of custody, there are no
policy and procedures, there are no technical review and
administrative review of reports. So, for me, it would be
digital evidence.
Mr. Tsin-A-Tsoi. I concur with my colleagues.
In general, perhaps, it is the areas in which the human
being becomes the measuring instrument himself, operating from
the database from in his brain that has not been published
publicly, which means that every human being might have a
different opinion.
Senator Blumenthal. Well, again, I want to thank you all.
Obviously, there is a lot of work to be done in this area.
Again, my thanks to the Chairman.
And thank you also to the excellent staff work that was
done for this committee hearing. And I know that we received an
excellent memo from the staff in preparation for it, so I want
to thank them as well.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
It has been a very interesting hearing. I am going to close
with something from the book. And I didn't get to ask any of
the questions that I wanted to ask.
[Laughter.]
The Chairman. But that is OK, because, I mean, this is a
hard subject. And I will send those questions.
But it is a hard subject, and it has to be broached, and it
is not one which is easily discussed.
But from page 23 of this book, that is, the ``Strengthening
Forensic Science in the United States: A Path Forward,'' which
was put out, the following is said. And this obviously I agree
with, so understand that.
``Scientific and medical assessment conducted in forensic
investigation should be independent of law enforcement efforts
either to prosecute criminal suspects or even to determine
whether a criminal act has indeed been committed. The best
science is conducted in a scientific setting as opposed to a
law enforcement setting. Because forensic scientists often are
driven in their work by a need to answer a particular question
related to the issues of a particular case, they sometimes feel
pressure to sacrifice appropriate methodology for the sake of
expediency.''
That comports with some stuff that I have watched and
looked at. It doesn't necessarily tell the story of anything in
particular.
I think this has been a very, very good hearing even though
you are probably all somewhat aghast.
[Laughter.]
The Chairman. But so be it. It is an important subject. If
it is hard to approach, then so be that. We have to continue at
this, and we will.
So I very much appreciate all of you being here.
And this hearing is adjourned.
[Whereupon, at 4:25 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Dr. T. (Tjark) Tjin-A-Tsoi
Question 1. The Netherlands Forensic Institute (NFI) not only
serves law enforcement needs but also acts as a ``high-tech knowledge
hub.'' Research and development are an integral part of its mission.
How has NFI integrated research and development into its work?
Answer. The essence of the business model of NFI, is that it
considers itself to be an independent provider of forensic products and
services to law enforcement (police, prosecution, magristrates) and all
other relevant governmental and intergovernmental customers.
In this approach innovation of products and services through
research and development (R&D) is an integral part of the business
model of the NFI. This is similar to the way private technology firms
operate when they conduct R&D and innovate in order to create unique
value for their customers.
In other words, even though NFI is government owned and not-for-
profit, it has adopted some of the basic concepts and organizational
structures from the private sector aiming at becoming a highly
innovative and efficient provider of forensic products and services.
Consequently, R&D within the NFI is managed in more or less the
same way as it is in the private sector. R&D costs are part of the
integral cost base of the product (groups).
In some departments, there are dedicated R&D units. In other
departments R&D is conducted part time by scientists that also do
casework.
Whenever possible, R&D projects are structured as ``co-creation''
projects, which means in essence that the customers are highly involved
in order to make sure highly valuable innovations are created and
wasteful expenditures are avoided.
In the context of R&D the NFI has adopted an open innovation
approach in which public private partnerships and consortia with
academia have been developed.
Question 2. The National Forensics Institute has been able to get
rid of backlogs and even shorten the time needed to analyze evidence.
Five years ago, its average delivery time was 140 days, while today it
is about 13 days. What reforms were implemented to eliminate backlogs
and long turnaround times?
Answer. The measures that the Netherlands Forensic Institute (NFI)
took to eliminate its backlog and reduce delivery times are described
in detail in the whitepaper ``Trends, challenges and strategy in the
forensic science sector'' by the NFI CEO Dr. T. Tjin-A-Tsoi.
In essence there were three main developments:
implementing a new business model which involved a more
businesslike approach towards are customers and ``negotiating''
a Service Level Agreement with them;
redesigning operational (production) processes in order to
make them more efficient and less time consuming;
redirecting the R&D effort towards innovative technical
methods for faster delivery.
To a certain extent all three developments involved changing the
organizational culture. As this is always the most difficult thing to
achieve, especially when the culture has been around for quite a
while--like in the forensic community--strong commitment and strong
leadership by senior management was essential.
No additional funds were made available to the NFI in order to
combat the backlogs.
As experiences around the world--and economic theory--have shown,
backlogs are an inevitable consequence of the technology driven growth
in the demand for forensic services, combined with the way crime labs
are usually funded. Most crime labs receive a fixed annual budget,
without having agreements with its customers on the amount of forensic
investigations that can be delivered, given those resources. The
officers actually commissioning the forensic investigations are not
aware of the costs of these investigations and have no idea which part
of total capacity their investigation will consume. This problem can be
solved in several ways, but a relatively low-impact method is to get
all parties to agree to a service level agreement (SLA) and to put in
place mechanisms to make sure supply and demand are not completely out
of balance.
Question 3. Thanks to the National Academies report on forensic
science, we know that many forensic methods lack scientific reliability
and may have unacceptably high error rates. To what extent can we trust
the results of forensic tests that have not yet been rigorously and
independently tested?
Answer. It is difficult to make a general statement on this
subject. When a solid scientific basis is lacking, quality and
reliability may vary from one lab to another, and even from one
practitioner to another. Subjective personal opinions of forensic
examiners become a substitute for objective scientific knowledge based
on empirical research. For decades these opinions went unquestioned.
The supposed scientific authority of forensic practitioners became a
source of pride for practitioners and a convenient instrument for law
enforcement and courts.
Police officers, prosecutors and even judges tend to push forensic
practitioners to give clear ``yes or no'' answers, even when this is
impossible. There are clear examples of cases and even whole forensic
disciplines in which this tendency was accommodated, even though it
cannot be justified scientifically.
What is needed is empirical scientific research in order to create
a solid scientific basis and scientific standards. However, this will
require a different culture and structure in the forensic community. At
the moment the forensic sector is highly fragmented and crime labs are
often relatively small production units that do not have the resources
to conduct R&D. Furthermore, crime labs are often part of police
organisations and become infused with police culture, with its specific
operational pressures. This is not necessarily conducive to independent
scientific development.
With this in mind, the NFI has developed a dedicated empirical
science program with respect to `objective interpretation' within all
its forensic disciplines.
______
Response to Written Questions Submitted by Hon. Mark Warner to
Dr. T. (Tjark) Tjin-A-Tsoi
Question 1. Currently, public labs must re-check any forensic
testing and results that are outsourced to private labs. However, the
cost of analyzing DNA samples in private laboratories can be up to 50
percent less than the cost of comparable analyses conducted by public
laboratories, due to private investments in R&D to lower costs and
remain competitive.
Do you think that a partnership between public and private labs
would be beneficial? Could it help to reduce pressure on public labs in
instances when there is a higher demand for analysis? If you disagree,
please explain why.
Answer. It is questionable whether handling only the overflow of
public labs is a viable business model for private labs, because the
overflow is highly volatile. Private companies would probably require a
more steady contractual relationship, which leads to the fundamental
question whether forensic examinations are intrinsically a government
activity. This is a political question. Nevertheless, it is possible to
outsource some of the work to private labs and I see no reason why this
should lead to poor quality, given the experience in other sectors in
which quality control is essential. However, outsourcing to the private
sector is not for free. An obvious alternative is to spend the same
funds to increase the capacity of existing public labs, giving them
more mass and thus capturing economies of scale. It is in that sense
interesting that there is reluctance to work with demand driven funding
structures (``pay for service'') in case of public labs, whereas there
seems to be no problem when the same customer (law enforcement agency)
works with private labs. In both cases public money is being spent.
Question 2. If there is a partnership, should private labs have
direct access to the Combined DNA Index System (CODIS)? If not, please
explain why.
Answer. Witness chose not to respond.
Question 3. No data currently exists on private vs. public lab
rates of error in analysis. Do you believe it would be beneficial to
have an independent evaluation of this data? If not, please explain
why.
Answer. Witness chose not to respond.
Question 4. All CODIS labs must be accredited and audited annually,
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of
forensic analyses (ballistics testing, fingerprint testing, toxicology,
etc.)
One of the possible solutions would be to require accreditation and
other types of quality control, such as proficiency testing of analysts
and blind review or auditing of actual casework to be sure it satisfies
defined standards.
What is the best way to establish a consistent accreditation and
quality control process? Should a Federal entity handle this work,
rather than private entities? If not, please explain why.
Answer. Witness chose not to respond.
Question 5. Why hasn't voluntary accreditation by private entities
involved proficiency testing of analysts or routine auditing of
casework?
Answer. Witness chose not to respond.
Question 6. Should recipients of Federal funding be required to
maintain quality controls, such as routine proficiency testing, blind
review of casework, and certification that an independent entity will
perform external investigations into possible misconduct? If not,
please explain why not.
Answer. Witness chose not to respond.
Question 7. One of the key findings in the 2009 National Academies
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the
sense that it has only thin ties to an academic research base that
could support the forensic science disciplines and fill knowledge
gaps.'' The report also noted that ``adding more dollars and people to
the enterprise might reduce case backlogs, but it will not address
fundamental limitations in the capabilities of forensic science
disciplines to discern valued information from crime scene evidence.''
Further, the report concluded that ``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.'' Does the current
Congressional approach address this problem sufficiently? Is there
anything else we can do to reduce barriers and further forensic
research?
Answer. I agree with the statement that the forensic community is
hampered in the sense that there is not enough scientific research and
innovation, and that the community has only thin ties to an academic
research base. However, before additional money is spent, I believe it
is important to be clear about the root causes of the present
situation.
One root cause is the lack of supply and demand coordination, which
has led to persistent backlog problems. Backlogs tend to drown out
other activities, like R&D. All additional funds tend to be used to
combat the backlog problem. Solving this problem is, therefore, a
critical step towards solving other problems in the forensic community.
Another root cause is the fragmentation of the forensic sector, in
the sense that it consists of many, relatively small, and separate
production units that operate for the benefit (and inside) of local
police organizations and jurisdictions. These units lack the critical
mass that is needed to conduct expensive R&D programs. Furthermore, the
culture and specific operational pressures of police organizations are
not necessarily the ideal organizational context for scientific
development and innovation. Most government crime labs in the US, or
indeed around the world, are relatively small and not independent
organizations. This is certainly one of the root causes of the problem.
(The Netherlands Forensic Institute is an independent government
agency, which is definitely one of the main reasons why it has
consistently been able to allocate substantial resources to R&D and
innovation.)
A third root cause is that crime labs that do want to use
proprietary funds to invest in R&D often have to do this without
financial contributions of other labs. The reason for this is that in
the forensic sector it is more or less common practice, that scientific
and technological results of proprietary R&D efforts are given away to
other government labs free of charge. Although this may look like
beneficial fraternal behavior between government entities, it actually
leads to a dearth of R&D. There is no financial incentive to invest in
R&D if all the financial risks are to be borne by the lab carrying out
the R&D, while all the outcomes are shared free of charge. This type of
free rider behavior is detrimental to R&D in the long run. R&D programs
thus tend to become completely dependent on individual grants, which
lack the continuity for persistent scientific development over a number
of years or even decades.
It is sometimes argued that the lack of R&D could be solved by
creating a centralized system of R&D-oriented institutes, possibly
universities or other research institutions. These would then perform
most of the research, while the casework would be done by the existing
system of local crime labs. The theory is that this research would
subsequently 'diffuse' into the forensic system. There are reasons to
be highly skeptical about this approach, as it would not address the
aforementioned root causes. It would be similar to a world in which
companies do not carry out R&D, but only use what universities and
other research institutions come up with. Experience has shown that a
severe disconnect is likely to arise between the central research
institutes and the hundreds of separately managed production units
doing all the case work. After all, even integrated technology
companies often struggle to keep their R&D programs in line with the
needs of the customers, or to implement innovations throughout the
organization. If casework and R&D are separated, the probable outcome
will be research that is very clever, but that not necessarily reflects
what the customers want or need. In other words, there is a need for
basic research that could partially be carried out by R&D-centers, but
this cannot replace the need for customer oriented R&D by forensic
service providers (crime labs) themselves. This means that the
aforementioned root causes should be addressed.
Question 8. When I was governor of Virginia, I ordered DNA testing
on all cases in 2004 in which biological evidence was preserved, but no
DNA testing was done because the technique was not available at the
time. This review resulted in a number of exonerations and I am very
proud of VA's role in securing the freedom of these innocent people.
When the testing process was done, I was made aware of delays by the
Virginia Department of Forensic Science in notifying individuals in
whose cases the DNA did not match the evidence in their case file.
What processes are in place to notify people when there is evidence
of innocence? As we fund research on forensic science, if a technique
like bite mark identification is found to be unreliable or if firearms
identification testimony is found to be beyond the limits of science,
what processes are in place in crime labs or elsewhere in the criminal
justice system to make sure that people with relevant cases aren't kept
in the dark?
Answer. Witness chose not to respond.
Question 9. Should Congress require states to submit data on crime
lab backlogs as a requisite for receiving Federal grant funding? If
not, please explain why.
Answer. Witness chose not to respond.
Question 10. Does the Bureau of Justice Statistics (BJS) survey of
public crime labs require states to assess their backlogs? If not,
would this be an appropriate requirement?
Answer. Witness chose not to respond.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Michael R. Bromwich
Question 1. The National Academy of Sciences recommended that
Congress create a new Federal agency to conduct rigorous, independent
research and testing in the forensic sciences. If that isn't possible
in the current budget climate, what other steps can Congress take to
improve the science underpinning forensic techniques?
Answer. If creating a new Federal agency is not possible, Congress
can take other steps to ensure that the major steps identified by the
National Academy of Sciences to improve the delivery of forensic
science services are assigned to Federal agencies that have the
relevant expertise. Basic and applied scientific research grants for
forensic disciplines should be funded by the National Science
Foundation (NSF), and measurement standards and other best practices
and standards should be developed and established by the National
Institute of Standards and Technology (NIST). The Department of Justice
(DOJ) can and should play an important role in ensuring implementation
of those best practices and standards, accreditation of laboratories,
and certification of forensic practitioners. Adherence to established
standards, practices, and quality measures can be tied to Federal
grants supporting forensic science such as the Coverdell and DNA
Backlog Reduction grants.
Question 2. As a former Federal prosecutor, what advice and
precautions would you give prosecutors who are using forensic evidence
in trying cases?
Answer. Prosecutors who makes use of forensic evidence in their
cases should realize that such evidence can be a powerful tool to
convict the guilty and exonerate the innocent. Because of its great
power, forensic evidence should be analyzed critically by prosecutors
and not accepted as revealed truth simply because an expert witness
provides it. Too often, that has been the case in the past. We have
seen too many cases in which passive prosecutors failed to make any
inquiry at all into the factual and scientific bases of an expert's
findings, which has led in many cases to flawed analysis, misleading
testimony, and erroneous convictions. At a very basic level,
prosecutors should make themselves aware of the very real issues
associated with certain forensic disciplines, which have thus far not
shown themselves able to conclusively link evidence to specific
individuals, and which therefore limits the probative value of expert
scientific testimony. Prosecutors should be wary about expert forensic
testimony that relies on anecdotal experience to imply uniqueness--that
is what many of the examiners did in the cases we reviewed in the
Department of Justice Office of the Inspector General's investigation
of the FBI Laboratory. http://www.justice.gov/oig/special/9704a/
index.htm. Furthermore, not only is it the duty of prosecutors to
ensure that the experts they are proffering testify in ways that are
fully scientifically defensible, but the prosecutor must also take care
not to overstate the strength of forensic findings in arguments to the
jury.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Michael R. Bromwich
Question. Whether it's the popularity of TV shows such as CSI or
simply young people's interest in science and desire for public
service, there has been an increasing awareness of Forensic Science as
a career path. I've worked to encourage efforts to link employers with
two and four year colleges to increase practical STEM training for
workers. How would developing standards of accreditation for forensic
training programs and degrees help make it easier for students to find
work in the field and to improve the quality of our forensic labs?
Answer. National standards would help ensure that forensic training
programs and academic degree programs provide the education, training,
experience, and technical skills to give forensic labs the personnel
they need. Such standards would promote confidence that the personnel
being hired are qualified to perform the work performed in those labs.
Incoming employees who are the products of accredited forensic training
programs would require less time to be spent at the outset of their
employment on basic training. Graduates of such programs would offer
improved technical skills for professional forensic practice, and would
deepen the scientific resources of the laboratory. All that being said,
the biggest problem facing aspiring forensic scientists is the budget
crunch faced by virtually all public forensic labs.
______
Response to Written Questions Submitted by Hon. Mark Warner to
Michael R. Bromwich
Question 1. Currently, public labs must re-check any forensic
testing and results that are outsourced to private labs. However, the
cost of analyzing DNA samples in private laboratories can be up to 50
percent less than the cost of comparable analyses conducted by public
laboratories, due to private investments in R&D to lower costs and
remain competitive.
Do you think that a partnership between public and private labs
would be beneficial? Could it help to reduce pressure on public labs in
instances when there is a higher demand for analysis? If you disagree,
please explain why.
Answer. Partnerships between public and private labs could result
in an improvement in service to the criminal justice system. Private
labs could help alleviate backlogs for public laboratories, and well-
funded private labs may have more sophisticated equipment and deeper
scientific resources. A public-private partnership could allow the
public labs to take advantage of equipment, training, and other
intellectual resources the private laboratory can offer. I should add
that I view such a partnership as a necessary evil rather than a
desirable state of affairs. I think forensic analysis conducted in
local, state and Federal criminal justice systems is an inherently
governmental function--indeed a core function of government. It is
shameful that our criminal justice system should have to rely on
private resources of any kind to support inherent governmental
functions, but unfortunately this has become a necessity in some
jurisdictions.
Question 2. If there is a partnership, should private labs have
direct access to the Combined DNA Index System (CODIS)? If not, please
explain why.
Answer. I do not know enough about the merits of the issue to offer
an informed opinion.
Question 3. No data currently exists on private vs. public lab
rates of error in analysis. Do you believe it would be beneficial to
have an independent evaluation of this data? If not, please explain
why.
Answer. I am not sure what purpose would be served by collecting
such data. I assume it would show that better funded private
laboratories, with more skilled, more highly compensated personnel,
better equipment, and better training, make fewer errors. Those would
be a wholly unsurprising result. It would simply underscore the need to
provide better funding for public laboratories, not that we would be
better off offloading more forensic analysis to private labs.
Question 4. All CODIS labs must be accredited and audited annually,
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of
forensic analyses (ballistics testing, fingerprint testing, toxicology,
etc.)
One of the possible solutions would be to require accreditation and
other types of quality control, such as proficiency testing of analysts
and blind review or auditing of actual casework to be sure it satisfies
defined standards.
What is the best way to establish a consistent accreditation and
quality control process? Should a Federal entity handle this work,
rather than private entities? If not, please explain why.
Answer. The National Institute of Standards and Technology (NIST)
is a Federal agency that can play an important role in establishing a
consistent accreditation and quality control process that harmonizes
the practice of laboratories across the country. To promote uniformity
and adherence to the highest standards, NIST should play a coordinating
and standards development role.
Question 5. Why hasn't voluntary accreditation by private entities
involved proficiency testing of analysts or routine auditing of
casework?
Answer. Voluntary accreditation of forensic laboratories by private
entities does involve requirements for the administration of
proficiency testing and auditing of casework, but there is much room
for improvement. Most forensic practitioners do not need to complete an
external proficiency test on an annual basis. Forensic proficiency
tests can be improved by double-blind administration and should be
designed to mirror casework as much as possible. Casework is audited
during accreditation on-site surveillance visits, but analysts are
allowed in many cases to select files for the auditors to review. To
improve audits of casework, casework should be selected by the auditor
at random and at least some surveillance visits should take place
unannounced.
Question 6. Should recipients of Federal funding be required to
maintain quality controls, such as routine proficiency testing, blind
review of casework, and certification that an independent entity will
perform external investigations into possible misconduct? If not,
please explain why not.
Answer. Maintaining quality controls, including those described in
the question, should be a minimum standard for all forensic
laboratories. Recipients of Federal funding should be required to meet
these criteria, because the Federal Government should not aid and abet
inferior and flawed forensic analysis. Currently, the Paul Coverdell
Forensic Science Improvement Grants Program awards grants to states and
units of local government to help improve the quality and timeliness of
forensic science and medical examiner services. The Coverdell Grant
program requires that a grant applicant certify that an external,
independent entity is available to conduct investigations into
allegations of serious negligence or misconduct.
Question 7. One of the key findings in the 2009 National Academies
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the
sense that it has only thin ties to an academic research base that
could support the forensic science disciplines and fill knowledge
gaps.'' The report also noted that ``adding more dollars and people to
the enterprise might reduce case backlogs, but it will not address
fundamental limitations in the capabilities of forensic science
disciplines to discern valued information from crime scene evidence.''
Further, the report concluded that ``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.'' Does the current
Congressional approach address this problem sufficiently? Is there
anything else we can do to reduce barriers and further forensic
research?
Answer. Congress has an opportunity to expand academic research in
forensic science and to raise the level of research in this field. To
date, it has not done so. In the past, law enforcement entities,
primarily the Department of Justice, have been the only agencies
funding forensic science research. The interests of law enforcement may
not always align with the most pressing research needs, including those
that might call into question or undermine categories of forensic
analysis widely used by prosecutors. By funding forensic science
research through grants to science agencies such as the National
Science Foundation (NSF), Congress can ensure that the highest
scientific standards are met and that the research will be conducted
independently.
The concern that law enforcement backing could create barriers to
conducting basic scientific research in the forensic sciences is real
and is based on the history of forensic science funding. Congress could
improve that system by ensuring that law enforcement agencies are not
the sole arbiters of worthy forensic science research.
Question 8. When I was governor of Virginia, I ordered DNA testing
on all cases in 2004 in which biological evidence was preserved, but no
DNA testing was done because the technique was not available at the
time. This review resulted in a number of exonerations and I am very
proud of VA's role in securing the freedom of these innocent people.
When the testing process was done, I was made aware of delays by the
Virginia Department of Forensic Science in notifying individuals in
whose cases the DNA did not match the evidence in their case file.
What processes are in place to notify people when there is evidence
of innocence? As we fund research on forensic science, if a technique
like bite mark identification is found to be unreliable or if firearms
identification testimony is found to be beyond the limits of science,
what processes are in place in crime labs or elsewhere in the criminal
justice system to make sure that people with relevant cases aren't kept
in the dark?
Answer. At present, there are no model systems in place to notify
defendants in those instances when negligence, misconduct, or flawed
science is found to have affected criminal cases. The problem of
defendant notification has multiple challenges: (1) Identification of
defendants in whose cases the faulty evidence was involved, (2)
Notification of affected defendants, who may or may not be in prison,
and (3) Legal representation for those defendants, many of whom are
indigent. The current FBI Hair Review has created an opportunity to
address these fundamental and important issues and create processes for
defendant notification. All states and localities should create a
defendant notification system that clearly assigns participants in the
criminal justice system appropriate roles and responsibilities. The
lessons learned from the current FBI hair review and the many other
state-level attempts to right the wrongs of faulty forensic analysis
should provide a foundation for developing a coherent and effective
defendant notification policy.
Question 9. Should Congress require states to submit data on crime
lab backlogs as a requisite for receiving Federal grant funding? If
not, please explain why.
Answer. Yes. Such data would be worthwhile, but for the data to be
meaningful, a uniform definition of backlog would need to be employed.
Without more, mere backlog numbers would not be particularly
informative.
Even more important than the backlog numbers themselves is an
analysis of why some states experience substantial backlogs and others
do not. By learning why backlogs occur in some jurisdictions but not in
others, guidance could be provided to help state criminal justice
systems manage their demand v. resource challenges.
Question 10. Does the Bureau of Justice Statistics (BJS) survey of
public crime labs require states to assess their backlogs? If not,
would this be an appropriate requirement?
Answer. In the 2009 Census of Publicly Funded Forensic Crime
Laboratories,\1\ the BJS reports the numbers of backlogs, but not
backlog numbers by state. Reporting the numbers of backlogged cases by
state would provide members of Congress and state legislatures with
important data that would be useful in making funding and policy
decisions.
---------------------------------------------------------------------------
\1\ See: http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf (last
accessed August 28, 2013)
---------------------------------------------------------------------------
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Dr. Gregory A. Schmunk
Question 1. The National Academy of Sciences recommended that
Congress create a new Federal agency to conduct rigorous, independent
research and testing in the forensic sciences. If that isn't possible
in the current budget climate, what other steps can Congress take to
improve the science underpinning forensic techniques?
Answer. The National Association of Medical Examiners (NAME)
strongly supports the NAS recommendation for a new Federal agency
(National Institute of Forensic Science-NIFS) to achieve these goals
and sees it as the foundation for the remainder of the NRC
recommendations. But NAME also recognizes that there might be
impediments to establishing such a new agency at this time. If a new
and independent agency is unattainable at present, NAME believes that
the duties of such an agency should be placed, as a bridging step, into
a new Office of Forensic Services (OFS) within an existing agency
fulfilling the spirit of the NRC recommendations.
An OFS could be established with relative structural independence
from its parent agency. This is primarily achieved by placing the
decision-making power in a committee of experts from the community,
rather than the bureaucracy of the parent agency. Thus, if an OFS is
placed within DOJ, the final decision-making should not be by the
Attorney General. One strategy to accomplish this separation of power
is to have advisory committees develop recommendations and an oversight
committee accept or reject the recommendations--sending forward
accepted recommendations, but sending rejected recommendations back to
the advisory committee for revision. Although stakeholders such as
prosecutors and law enforcement officials should have input into the
process, the decision-making should be primarily from researchers and
practitioners. NAME believes that NIST and the CDC have scientific
expertise that would make their participation useful. NAME also
believes that transparency and community input must be part of the
regulatory oversight.
Independence of research and testing is best accomplished through
grants to independent academic institutions, rather than by Federal
institutions themselves which might have conflicts of interest. Some
grants could build ``Center'' type capacity in a few institutions in
order to achieve a critical mass of investigators capable of
multidisciplinary studies. However, other grants should go to academic
institutions with an interest in building forensic science and forensic
medicine research in collaboration with forensic practitioners.
The NAS report outlines that one of the functions of NIFS is to
establish and enforce best practices for forensic science
professionals. In the arena of medico-legal death investigation, NAME
has established Forensic Autopsy Performance Standards as well as an
Inspection and Accreditation program that can be used for this purpose.
NAME believes that an essential function of NIFS or an OFS would be
to conduct periodic forensic science needs assessments at the federal,
state, regional, and local levels in order to ensure optimal provision
of resources to service providers. Such assessments should also
consider research needs. The assessment results should be presented in
a report.
Question 2. According to a recent poll of National Association of
Medical Examiners (NAME) members, 70 percent of medical examiners have
been pressured to reach a particular conclusion. Is it this kind of
political pressure that has prompted NAME to call for greater
independence from law enforcement?
Answer. NAME is strongly supportive of the independence of the
Medicolegal Death Investigation system from the influence of law
enforcement and other criminal justice agencies as was recommended by
the NAS report. Pressures on forensic pathologists in the course of
their duties can come from many other sources. Pressures may come from
families who are upset that a ruling on manner of death is suicide.
Pressures may come from government officials who may disagree with the
medico-legal conclusions that are contrary to their interests.
Prosecutorial bias is among the more important and pernicious concerns,
and NAME believes that medico-legal death investigation offices should
not be under law enforcement agencies, but rather should appear
independent and be independent. NAME is, at the most basic level,
supportive of a system which considers neutral, objective, and evidence
based scientific data in reaching conclusions on cause and manner of
death. As the popular television programs state, we simply need to
``follow the evidence'' in reaching our conclusions. The public needs
to be confident that our conclusions are based upon such evidence and
are free of any conflict of interest. This may be most apparent in
reaching conclusions in law enforcement-related or in-custody deaths,
but a similar need to be free of conflict exists where the family may
suffer distress or financial hardship (such as denial of insurance
benefits) with determinations such as suicide. It should be kept in
mind that all professional groups, including NAME, the American Medical
Association, the College of American Pathologists, and the American
Society of Clinical Pathologists to name a few, strongly consider that
the determination of cause and manner of death is a medical decision,
to be decided by medical professionals. In the medico-legal environment
these determinations should be the realm of Forensic Pathologists and
Medical Examiners. In the same way that no person would ever conceive
of delegating their clinical diagnosis and medical care to someone
other than a professional specifically trained in the medical field
that was relevant to their illness or injury, so should political
entities and the public demand and be assured that a medical
professional specifically trained in forensic medicine and the
determination of cause and manner of death is making the medico-legal
diagnoses and determinations of cause and manner of death. NAME
believes that all medico-legal death investigative offices should be
headed by a forensic pathologist, rather than by coroners or
administrators which have a greater propensity to politicization and
significantly lesser backgrounds in science and forensic medicine.
Question 3. Thanks to the National Academies report on forensic
science, we know that many forensic methods lack scientific reliability
and may have unacceptably high error rates. To what extent can we trust
the results of forensic tests that have not yet been rigorously and
independently tested?
Answer. Research is the platform upon which all of forensic science
stands. NAME strongly supports increased basic science and applied
research. Research provides the answer to the question of error rates.
Additional research must be undertaken to refine the practice of
forensic pathology, including better understanding of the error rates
applicable to this discipline. With this goal in mind, it is important
to foster and support increased collaboration between the many
practitioners of forensic pathology, largely based in states and
counties, with researchers based in academic programs. Academic centers
have research assets including trained investigators, laboratories, and
administrative and compliance support for sponsored projects. However,
these academic institutions oftentimes need practicing forensic
scientists and pathologists who can ensure that research projects are
focused on relevant questions and participate in multidisciplinary
approaches to complex forensic issues.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Dr. Gregory A. Schmunk
Question. Whether it's the popularity of TV shows such as CSI or
simply young people's interest in science and desire for public
service, there has been an increasing awareness of Forensic Science as
a career path. I've worked to encourage efforts to link employers with
two and four year colleges to increase practical STEM training for
workers. How would developing standards of accreditation for forensic
training programs and degrees help make it easier for students to find
work in the field and to improve the quality of our forensic labs?
Answer. There is currently a national shortage of forensic
pathologists as identified in the recent report, ``Increasing the
Supply of Forensic Pathologists in the United States: A Report and
Recommendations'', from the National Institute of Justice sponsored
Scientific Working Group for Medicolegal Death Investigation (SWGMDI).
We are simply not graduating enough forensic pathologists to meet the
needs of the country, especially if it is the desire of the Federal
Government to improve the overall quality of forensic pathology
services in the nation, and not just accept excellence in only some
states and counties, leaving other elements of the population
(frequently rural or sparsely populated areas) to endure substandard
services. This shortage mirrors the more global issue of shortage in
Graduate Medical Education positions as a whole in the country. Over
500 medical school graduates were unable to find any residency program
in the past year. Despite the existence of 113 medical schools in the
U.S. there are only 37 accredited forensic pathology programs. Salaries
for forensic pathologists and trainees are lower than for other
disciplines in pathology, discouraging medical students from becoming
forensic pathologists. Forensic pathology residency programs are the
only subspecialty of medicine not subsidized by the Federal Government,
as they are not hospital based. Increased funding of academic pathology
residency programs could create partnerships with medical examiner
offices to provide enhanced training and research opportunities for
forensic pathology residents and address our national manpower shortage
in this discipline. Training programs in forensic pathology need
increased funding to supply the pathologists necessary for the Nation's
work to be done.
Forensic pathology has a long established program for certification
and accreditation. The Accreditation Council for Graduate Medical
Education (ACGME) has accredited forensic pathology training programs
since 1982. This process replaced a previous accreditation program
administered by the American Medical Association (AMA) Council on
Medical Education in conjunction with the American Board of Pathology
(ABP) which had been in place since 1961.
The ABP has certified individual forensic pathologists since 1959.
As physicians, all forensic pathologists are licensed and required to
complete regular continuing education requirements to maintain their
license. Additional requirements for Maintenance of Certification (MOC)
have been instituted by the ABP in order to maintain subspecialty
certifications.
NAME has accredited Medicolegal Death Investigation offices since
1974 and has had professional standards for autopsy performance since
2005.
The American Board of Medicolegal Death Investigation (ABMDI) has
certified Medicolegal Death Investigators since 1998.
These clear and well established paths to accreditation and
certification exist in all aspects of Medicolegal Death Investigation
and have been accepted for many years by the Federal Government. This
represents an excellent model for what the Federal Government might
wish to achieve with regard to accreditation and certification in other
forensic science disciplines.
However, major areas which still need to be addressed are
developing a qualified pool of practitioners to enter the field
including creating incentives for individuals to choose death
investigation as a career, and creating incentives for state and county
governments to ensure that their death investigation offices are
accredited. Federal support as outlined in my presentation will assist
in all of these areas.
______
Response to Written Questions Submitted by Hon. Mark Warner to
Dr. Gregory A. Schmunk
Question 1. Currently, public labs must re-check any forensic
testing and results that are outsourced to private labs. However, the
cost of analyzing DNA samples in private laboratories can be up to 50
percent less than the cost of comparable analyses conducted by public
laboratories, due to private investments in R&D to lower costs and
remain competitive.
Do you think that a partnership between public and private labs
would be beneficial? Could it help to reduce pressure on public labs in
instances when there is a higher demand for analysis? If you disagree,
please explain why.
Answer. NAME feels that these questions are applicable to crime
labs and therefore would defer remarks to experts in that field.
Question 2. If there is a partnership, should private labs have
direct access to the Combined DNA Index System (CODIS)? If not, please
explain why.
Answer. NAME feels that these questions are applicable to crime
labs and therefore would defer remarks to experts in that field.
Question 3. No data currently exists on private vs. public lab
rates of error in analysis. Do you believe it would be beneficial to
have an independent evaluation of this data? If not, please explain
why.
Answer. NAME feels that these questions are applicable to crime
labs and therefore would defer remarks to experts in that field.
Question 4. All CODIS labs must be accredited and audited annually,
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of
forensic analyses (ballistics testing, fingerprint testing, toxicology,
etc.)
One of the possible solutions would be to require accreditation and
other types of quality control, such as proficiency testing of analysts
and blind review or auditing of actual casework to be sure it satisfies
defined standards.
What is the best way to establish a consistent accreditation and
quality control process? Should a Federal entity handle this work,
rather than private entities? If not, please explain why.
Answer. NAME agrees that proper quality assurance (QA) programs are
essential to ensuring that the product of laboratories is of the
highest quality. NAME has incorporated multiple QA requirements into
our Inspection and Accreditation process. The American Board of
Pathology, state medical licensure boards and the American Board of
Medicolegal Death Investigation all require documentation of continuing
education on a regular basis. Proficiency testing is one component of
quality assurance. The NAME Inspection and Accreditation standards
require regular participation in established QA programs such as the
American Society of Clinical Pathology (ASCP) Case Reports (formerly
Check Sample) program. We also require review of casework via a defined
process. NAME favors Federal funding being tied to documentation of
ongoing QA programs.
NAME also recognizes that oversight is essential within the medico-
legal death investigative system. A citizen must have a proper avenue
by which to address complaints. Several states, such as Maryland, have
procedures for appeal defined in state statute. This answer was more
fully explored in the answer to Chairman Rockefeller's second question.
Question 5. Why hasn't voluntary accreditation by private entities
involved proficiency testing of analysts or routine auditing of
casework?
Answer. NAME agrees that proper quality assurance (QA) programs are
essential to ensuring that the product of laboratories is of the
highest quality. NAME has incorporated multiple QA requirements into
our Inspection and Accreditation process. The American Board of
Pathology, state medical licensure boards and the American Board of
Medicolegal Death Investigation all require documentation of continuing
education on a regular basis. Proficiency testing is one component of
quality assurance. The NAME Inspection and Accreditation standards
require regular participation in established QA programs such as the
American Society of Clinical Pathology (ASCP) Case Reports (formerly
Check Sample) program. We also require review of casework via a defined
process. NAME favors Federal funding being tied to documentation of
ongoing QA programs. NAME also recognizes that oversight is essential
within the medico-legal death investigative system. A citizen must have
a proper avenue by which to address complaints. Several states, such as
Maryland, have procedures for appeal defined in state statute. This
answer was more fully explored in the answer to Chairman Rockefeller's
second question.
Question 6. Should recipients of Federal funding be required to
maintain quality controls, such as routine proficiency testing, blind
review of casework, and certification that an independent entity will
perform external investigations into possible misconduct? If not,
please explain why not.
Answer. NAME agrees that proper quality assurance (QA) programs are
essential to ensuring that the product of laboratories is of the
highest quality. NAME has incorporated multiple QA requirements into
our Inspection and Accreditation process. The American Board of
Pathology, state medical licensure boards and the American Board of
Medicolegal Death Investigation all require documentation of continuing
education on a regular basis. Proficiency testing is one component of
quality assurance. The NAME Inspection and Accreditation standards
require regular participation in established QA programs such as the
American Society of Clinical Pathology (ASCP) Case Reports (formerly
Check Sample) program. We also require review of casework via a defined
process. NAME favors Federal funding being tied to documentation of
ongoing QA programs. NAME also recognizes that oversight is essential
within the medico-legal death investigative system. A citizen must have
a proper avenue by which to address complaints. Several states, such as
Maryland, have procedures for appeal defined in state statute. This
answer was more fully explored in the answer to Chairman Rockefeller's
second question.
Question 7. One of the key findings in the 2009 National Academies
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the
sense that it has only thin ties to an academic research base that
could support the forensic science disciplines and fill knowledge
gaps.'' The report also noted that ``adding more dollars and people to
the enterprise might reduce case backlogs, but it will not address
fundamental limitations in the capabilities of forensic science
disciplines to discern valued information from crime scene evidence.''
Further, the report concluded that ``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.'' Does the current
Congressional approach address this problem sufficiently? Is there
anything else we can do to reduce barriers and further forensic
research?
Answer. NAME strongly advocates both basic and applied grant
supported research in the forensic sciences. It is our impression that
the CDC and NIJ do not adequately see forensic pathology as a
discipline deserving basic research support. Furthermore, forensic
pathology practitioners are not usually housed in academic
institutions, and academic centers usually do not interact with their
local forensic pathologists. It is important to bring these two groups
together to foster research. Another logistical problem is that most
forensic pathologists are fully occupied with their daily workload and
do not have time for research projects. State and county agencies
providing funding to medico-legal death investigation offices rarely
perceive the value of research by forensic pathologists. CDC, NIJ, NIH
and other Federal agencies should create mentoring, pilot and career
development awards and grants to foster practitioner-based research.
Question 8. When I was governor of Virginia, I ordered DNA testing
on all cases in 2004 in which biological evidence was preserved, but no
DNA testing was done because the technique was not available at the
time. This review resulted in a number of exonerations and I am very
proud of VA's role in securing the freedom of these innocent people.
When the testing process was done, I was made aware of delays by the
Virginia Department of Forensic Science in notifying individuals in
whose cases the DNA did not match the evidence in their case file.
What processes are in place to notify people when there is evidence
of innocence? As we fund research on forensic science, if a technique
like bite mark identification is found to be unreliable or if firearms
identification testimony is found to be beyond the limits of science,
what processes are in place in crime labs or elsewhere in the criminal
justice system to make sure that people with relevant cases aren't kept
in the dark?
Answer. NAME agrees that procedures need to be in place to notify
the proper individuals when new evidence arises in a case. Legislation
should exist which would make it easier for practitioners to bring new
information to the attention of the legal system and for the legal
system to consider this new evidence. In the field of forensic
pathology there can occasionally be a change in a case which could
affect our interpretation and certification. The determination of
manner of death may be based on the investigation and ancillary
information gained by laboratory testing. The circumstances of a case
are very important to our certification. If our knowledge of the
circumstances change, such that the evidence no longer supports the
manner of death as originally certified, a reconsideration of the
manner may be required. Similarly, the practice of forensic pathology
is based partly upon medical knowledge, which is constantly being
reevaluated as medical science advances. New conditions may be
discovered, or new clinical information may be disclosed at a later
date which may influence the diagnosis, and thus the certification of
cause or manner of death. It is important to accept that in light of
new information reasonable people may appropriately change their mind
and this process needs to be recognized by the legal system and courts
to best serve the cause of justice.
Question 9. Should Congress require states to submit data on crime
lab backlogs as a requisite for receiving Federal grant funding? If
not, please explain why.
Answer. NAME supports requirements to address backlogs. Our current
inspection and accreditation standards require that 90 percent of
homicide cases are completed within 90 calendar days and 90 percent of
all other cases be completed within 60 calendar days to be granted full
NAME accreditation of an office or system. Our work to improve case
turn-around-time would be aided by the establishment of similar
standards for the toxicology labs which support our work. In many parts
of the country families are unable to get autopsy reports death
certificates in a timely manner due to months-years long delays in the
receipt of toxicology testing.
Question 10. Does the Bureau of Justice Statistics (BJS) survey of
public crime labs require states to assess their backlogs? If not,
would this be an appropriate requirement?
Answer. This question is essentially directed at crime labs so NAME
will not respond directly. The last BJS survey of medico-legal death
investigation systems was conducted in 2002. A new and updated survey
is long overdue and would be welcomed by the medico-legal death
investigation community.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Jill Spriggs
Question 1. The National Academy of Sciences recommended that
Congress create a new Federal agency to conduct rigorous, independent
research and testing in the forensic sciences. If that isn't possible
in the current budget climate, what other steps can Congress take to
improve the science underpinning forensic techniques?
Answer. (A) Make funding specific toward a need and the application
of the science--The National Academy of Forensic Sciences report
demonstrated a need for and the development of a practical approach to
research in regards to forensic science but first a specific roadmap or
needs assessment must be created from the perspective of the end-user
so as to ensure that funding can be directed to specific needs.
Research would be most effective by enhancing ongoing efforts with
established partners, such as colleges, universities, the national
laboratory system, Scientific Working Groups, etc. and other Federal
agencies. In the past, laboratories had the luxury of performing their
own research, publishing the research and/or presenting the research.
No longer do most crime labs have the option of performing research,
since most are focused on rising backlogs in such disciplines as
controlled substances, toxicology and latent prints. Who better to take
the research created by universities and apply it to forensic
disciplines than the scientists already working in the crime labs?
Unfortunately, until backlogs are reduced, this will not happen.
(B) A Federal Repository is needed--Scientific Working Groups are
an effective way of coordinating, managing and cataloging research
efforts and a website should be created to perform as a repository of
all research so that it is available for all to build on and utilize.
This approach would help ensure research efforts are current and
timely. We have already seen this call to action with Scientific
Working Group for Firearms and Tool Marks (SWGGUN) and Scientific
Working Group on Friction Ridge Analysis (SWGFAST). SWGFAST has always
maintained that a significant body of constructive scientific research
has already been conducted that addresses some of the concerns
expressed in the National Academy of Sciences report.
(C) A review of existing research must be conducted--Since the
release of the National Academy of Sciences report, additional research
has been ongoing throughout the world which addresses the science of
friction ridge identification. Some of that research has been published
and/or reported on to the community, while some remains in progress. In
November 2011, SWGFAST provided a 64 page response to a request from
the Research, Development, Testing & Evaluation Inter-Agency Working
Group of the National Science and Technology Council, Committee on
Science, Subcommittee on Forensic Science asking for an annotated
bibliography of the literature supporting the friction ridge sciences.
This report available at http://www.pdfdownload.org/pdf2html/
pdf2html.php?url=http%3A%2F%2Fswgfast.org%2
FResources%2F111117-ReplytoRDT%26E-FINAL.pdf&images=yes was prepared on
behalf of SWGFAST by a dedicated task force established at the
University of Lausanne (Forensic Science Department of the Faculty of
Law and Criminal Justice) under the direction of SWGFAST member Dr.
Christophe Champod. Included within the report are publications
covering the areas of: underlying fingerprint characteristics, minutiae
sample sufficiency, fingerprint quality, fingerprint matching, type I
and type II error, probability, analyst consideration, and end to end
process reliability.
SWGGUN in their own regard compiled as part of the SWGGUN
Admissibility Resource Kit (www.swggun.org) any research that has been
performed to establish the validity of the forensic firearm and tool
mark discipline. Numerous research projects have tested the fundamental
propositions of the forensic firearm and tool mark discipline,
resulting in the establishment and continued support of the AFTE Theory
of Identification.
In response to questions posed by the Subcommittee on Forensic
Science's Research, Development, Testing & Evaluation Interagency
Working Group (RDT&E IWG), the SWGGUN compiled a list of annotated
bibliographies of the foundational research performed in the forensic
firearms and tool marks discipline. The list is 47 pages in length, and
can be found on the SWGGUN website. http://www
.swggun.org/swg/index.php?option=com_content&view=article&id=51:swggun-
responds-to-sofs-request&catid=13:other&Itemid=43
The SWG groups could help facilitate the gathering, cataloging,
storing, and disseminating existing research data, as well as research
previously conducted and help in providing these materials to the
community upon request and/or posting it on their specific website.
Question 2. In your testimony, you raised a concern that applying
Federal Advisory Committee Act (FACA) regulations to the National
Commission on Forensic Science will ensure that representatives from
state and local forensic science organizations ``do not have a voice in
regards to any outcomes from the Commission.'' Given the Commission
charter and the FACA provisions repeated below, can you further detail
the reasoning behind this concern?
Answer. Excerpt from the Charter of the DOJ National Commission on
Forensic Justice
12. Membership and Designation: . . . The Commission members
will be selected to achieve a balance of backgrounds,
experiences, viewpoints, and expertise in scientific, legal,
law enforcement, academic, and advocacy professions. Candidates
for membership from non-federal entities will be solicited
through the Federal Register and outreach to relevant
professional societies.
Excerpt from the Federal Advisory Committee Act (5 U.S.C. App.
2.), as amended
Sec. 10. Advisory committee procedures; meetings; notice,
publication in Federal Register; regulations; minutes;
certification; annual report; Federal officer or employee,
attendance
(a)(1) Each advisory committee meeting shall be open to the
public.
(2) Except when the President determines otherwise for reasons
of national security, timely notice of each such meeting shall
be published in the Federal Register, and the Administrator
shall prescribe regulations to provide for other types of
public notice to insure that all interested persons are
notified of such meeting prior thereto.
(3) Interested persons shall be permitted to attend, appear
before, or file statements with any advisory committee, subject
to such reasonable rules or regulations as the Administrator
may prescribe.
A few years ago, the National Science and Technology Council,
Committee on Science conducted Interagency Working Groups (IWGs) via
the Subcommittee on Forensic Science. The Subcommittee on Forensic
Science was charged with the following tasks:
1. Develop a White Paper summarizing the Subcommittee on Forensic
Science's recommendation to achieve the goals of the NRC
report.
2. Create a prioritized national forensic science research agenda.
3. Draft a detailed strategy for developing and implementing common
interoperability standards to facilitate the appropriate
sharing of fingerprint data across technologies.
The IWGs were composed of federal, state and local forensic
scientists, researchers and attorneys. At the end of 2012, the National
Science and Technology Council was supposed to release a list of
recommendations aimed at the forensic science community regarding five
categories:
Accreditation and Certification
Education, Ethics and Terminology
Standards, Practices and Protocols
Outreach and Communications
Research, Development, Testing and Evaluation
The forensic community has yet to see the release of these
recommendations. Furthermore, the FACA provision was used as reasoning
for the lack of communication throughout the forensic community in
regards to the Interagency Working Groups (IWGs) and their development
of these recommendations. Still to this day, the forensic community
does not know the outcome of the information discussed or recommended
as we near the completion of 2013.
Since the hearing, the forensic community has been assured by
National Institute of Science and Technology (NIST) that state and
local crime labs will have a voice in regards to the outcome of
standards set by the Commission and FACA rules will reply. One
distinction should be pointed out. While state and local crime
laboratory directors on the Commission will have a voice, they will not
be able to vote on any of the recommendations of the Commission. In
addition, any standards handed down by the Commission will apply only
to the Federal crime laboratories we have been told. State and local
crime laboratories can adhere to these standards as they see fit. But
one must remember, DNA CODIS and latent fingerprint databases are
overseen by Federal agencies and because of this--a trickle-down effect
of the standards voted on by the Commission must be adhered to by state
and local crime laboratories in order to receive Federal grants and
effectively participate in using these databases to solve crime in
their geographical backyards.
Question 3. In raising concerns about new forensic science
standards, your testimony seemed to express support for the ongoing
Scientific Working Group (SWG) standard development process. However,
as I mentioned during the hearing, Judge Harry Edwards, who co-chaired
the panel responsible for the Strengthening Forensic Sciences report,
has criticized the SWGs for being of questionable value in that they
meet irregularly, lack membership standards, and generate vague,
unenforceable guidelines without measuring progress against them. How
would your organization respond to these criticisms? What elements of
the SWGs is your organization most supportive of?
Answer. On February 15, 2013 an announcement was made by the
Department of Justice (DOJ) and National Institute of Standards and
Technology (NIST) establishing a National Commission on Forensic
Science that will consist of a thirty member ``commission'' as well as
discipline specific ``guidance groups''. The guidance groups will
develop and propose discipline specific recommendations, and the
Commission will consider whether to endorse and recommend those
guidelines and if they are to be implemented for use.
The precursor groups to these ``guidance groups'' are twenty-one
existing Scientific Working Groups (SWGs). SWGs (originally ``TWGs'')
have been representing the rich and diverse array of the forensic
sciences since TWGDAM (now SWGDAM) was formed in 1988. Since that time,
the number of SWGS has grown in order to remain current with emerging
disciplines and the constant evolution of forensic science. These SWGs
have worked to standardize and advance the practices of their
disciplines for more than twenty years; producing concrete results
through the publication of hundreds of documents that provide clear
recommendations and guidance in forensic science. The success of the
SWGS' work is evident by citations in countless judicial proceedings.
The SWGs are recognized by their international counterparts as leaders
in the global forensic community as well as leaders in research and
development.
The criticisms of Judge Harry Edwards, who co-chaired the panel
responsible for the Strengthening Forensic Sciences report, reflect
information that was not complete and needs further discussion. The
lack of information stems from the fact that the NAS Committee did not
engage with ALL of the SWGs. Had they done so, they would have learned
that the criticisms reflected in the report, while potentially valid
for some SWGs, are not valid for the majority.
Irregular meetings: It is a valid criticism that many SWGs meet
irregularly. But SWGs that have had consistent funding do meet
regularly and produce more standards and guideline documents than those
who do not. It is clear that constant and consistent funding for each
SWG is critical for their success. With the onset of sequestration,
most SWGs have been adversely affected, having meetings reduced or
cancelled. An oversight organization which operates all of the SWGs,
and provides sufficient funding to support regular meetings by all
SWGs, would adequately address this criticism.
Membership standards: Well-run SWGs have clear bylaws which
delineate such areas as membership requirements. The majority of the
SWGs do have clearly delineated bylaws and membership standards. The
creation of an oversight organization which operates all of the SWGs
and could ensure that membership guidelines are established for all
SWGs, would adequately address this criticism. Note, however, that the
membership standards which may be appropriate for one SWG may not be so
for all; therefore flexibility in developing these standards must exist
to address the needs of each SWG.
Unenforceable guidelines--The SWGs as currently formed exist within
the forensic community and are well known by their practitioners. There
is no regulatory force that is associated with them (including their
creation). They were created by members of the forensic community to
address recognized needs within their disciplines for best practices
and guidelines. The SWGs have never been ``granted'' any authority to
create or enforce these guidelines or standards by any official
regulatory body. The guidelines produced are distributed to members of
their respective forensic community to solicit feedback to make sure
the guidelines are useful by all and appropriate for the discipline. It
is the members of the forensic community that have supported and
endorsed these guidelines.
SWG documents have been cited in court proceedings and many SWGs
keep track of how often their documents have been cited in court
proceedings. The courts have been responsible in many cases of
``enforcing'' the standards by recognizing the validity of individual
SWG documents when accepting testimony. In addition, some SWGs have
gone through the process of having their documents published under
standards organizations such as ASTM. In the event that an oversight
organization is created which operates all of the SWGs, and this
organization be given some authority over implementation of those
standards, then this criticism would also be addressed.
The SWGs have long provided the necessary scientific guidance
needed by the forensic community. If the needs of the SWG groups are
met with consistent funding and administrative support, we are
convinced that the concerns of the NAS report will be addressed. With
the advent of a single funding and organizational body, all twenty-one
current Scientific Working Groups--representing the breadth of forensic
science--will be able to come together under one organization to
continue their work advancing the forensic sciences. By uniting, there
is clearly an opportunity for the SWGs to become even more successful
and to continue to provide their community the necessary guidance for
years to come.