[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
TO EXAMINE THE STATE OF FORENSIC SCIENCE IN THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MARCH 28, 2017
__________
Serial No. 115-8
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
26-993 PDF WASHINGTON : 2017
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security and Investigations
TREY GOWDY, South Carolina, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
JIM SENSENBRENNER, Jr., Wisconsin SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio TED DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
JOHN RATCLIFFE, Texas HAKEEM JEFFRIES, New York
MARTHA ROBY, Alabama TED LIEU, California
MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland
C O N T E N T S
----------
MARCH 28, 2017
OPENING STATEMENTS
Page
The Honorable Trey Gowdy, South Carolina, Chairman, Subcommittee
on Crime, Terrorism, Homeland Security, and Investigations;
Committee on the Judiciary..................................... 1
The Honorable Sheila Jackson Lee, Texas, Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations; Committee on the Judiciary**................... 3
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 4
WITNESSES
Dr. Victor Weedn, MD, JD, Professor of Forensic Sciences, George
Washington University
Oral Statement................................................. 7
The Mr. Matthew Gamette, Lab System Director, Idaho State Police
Forensic Science
Oral Statement................................................. 9
Dr. David Baldwin, Special Technologies Laboratory, National
Security Technologies LLC
Oral Statement................................................. 11
Ms. Sandra Guerra Thompson, Professor at University of Houston
Law Center, Chair at Houston Forensic Science Center
Oral Statement................................................. 12
Additional Material Submitted for the Record
Material submitted by the Honorable John Ratcliffe, Texas, House
Judiciary Committee:
http://docs.house.gov/meetings/JU/JU08/20170328/105786/HHRG-115-
JU08-20170328-SD003.pdf
TO EXAMINE THE STATE OF FORENSIC SCIENCE IN THE UNITED STATES
----------
Tuesday, March 28, 2017
House of Representatives,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 3:00 p.m., in
Room 2141, Rayburn House Office Building, Hon. Trey Gowdy
[chairman of the subcommittee] presiding.
Present: Representatives Gowdy, Goodlatte, Ratcliffe,
Chabot, Jackson Lee, Conyers, and Lieu.
Staff Present: Jason Cervenak, Counsel; Scott Johnson,
Clerk; Joe Graupensperger, Minority Counsel; Veronica Eligan,
Minority Professional Staff Member; Regina Milledge-Brown,
Minority Crime Detailee; Karis Johnson, Minority Legislative
Counsel.
Mr. Gowdy. Welcome. The committee will come to order. The
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations has come to order. Without objection, the chair
is authorized to declare recesses of the subcommittee at any
time.
We welcome everyone to today's hearing on forensic science.
Just for our witnesses, we are very grateful to have you here,
on behalf of Ms. Jackson Lee and myself. And to our guests in
the audience, that buzzer you just heard is them calling votes.
So Ms. Jackson Lee and I will give our opening statements.
Then we will recess and go vote, and then we will come back and
have the hearing, and then there is another vote series on the
other side. So, I apologize for any inconvenience. I will give
you the names of the people to blame. Neither one of them are
in front of you right now.
With that, I will recognize myself on opening statement,
and I will tell the witnesses, there is a wonderful opening
statement that was prepared and given to me, and I am going to
make it part of the record. But I am also going to divert a
little bit this morning to talk about something that I am even
more familiar with, which is the real-life value of forensic
science.
Lawyers do not win cases. Facts win cases, and
increasingly, those facts are rooted in science.
Twenty years ago, I met a young man by the name of Ricky
Tyrone Samuel. Ricky had a wonderful mother by the name of
Sylvane, who loved him and wanted a good life for him, and
Ricky got into a little bit of trouble, as young men, from time
to time, do. So, Ricky had a choice: he could follow that
sometimes-predictable path for young people who get in trouble,
or he could use that incident to try to turn his life around.
He chose to turn his life around, and he met with us at the
United States Attorney's Office, and he met with Federal law
enforcement officers and did what we encourage people to do in
all facets of life, which is to accept responsibility and tell
the truth.
I was sitting in a courtroom about 6 months after I met
Ricky Samuel, well before they had cell phones, and you could
feel the pager vibrate. But you cannot look at it, not in a
room with a Federal judge. So, it just kept vibrating and
vibrating and vibrating, and finally, on a break, I looked and
saw those ominous numbers, 911, connected with a callback
number to an ATF agent who I was working the case with. And I
called the ATF agent back, and he said Ricky Samuel's body was
found this morning on his knees beside an isolated, tranquil
pond in northern Greenville County. No witnesses except the
trees. No shell casings. Just a single bullet, execution-style,
in the back of his head.
Now, I knew exactly who was responsible for killing Ricky
Samuel. His name had just been released to the criminal defense
attorneys that were defending someone in a Federal criminal
trial; just released the name in discovery. But knowing
something and proving something are two entirely different
things. I knew who was responsible; now, we had to prove it.
In Ricky's home in Spartanburg, there was a Bible, and that
is not unusual in South Carolina to find a Bible, but this one
was brand new. It was a gift from a man who had been visiting
in the neighborhood, going door to door trying to introduce
people to Jesus. So, the police took that Bible into evidence
for some reason. They logged it in.
Now, on a single, solitary page in a single, solitary book
called Ezekiel was a fingerprint. Wouldn't be unusual to find a
fingerprint in my wife's Bible or my grandmother's Bible.
Pretty unusual to find one in a brand-new Bible. So, the police
ran that fingerprint through the database and it came back to a
Bob Harry Fowler. Mr. Fowler was not a preacher. Mr. Fowler was
not an evangelist. Mr. Fowler was a contract killer sent to
Spartanburg, South Carolina to kill a Federal witness.
I do not remember the name of the technician. I do remember
the name of the judge. I remember the name of the defense
attorney. I remember the prosecutor who took the lead in that
case because it is the best prosecutor I have ever seen in my
life or ever will see in my life, a man by the name of David
Stephens. What I remember most of all is that Ricky Samuel's
mother now knows who killed him. And she knows who killed him
because a technician took the time to flip through every single
page of a piece of evidence that most lawyers would have said,
``do not even collect it.''
Nothing can mitigate the pain of a loss, but knowing that
the people who took your son's life are serving life without
parole in Federal prison is at least one way to close the
chapter, at least on the criminal justice part of it. A single,
solitary fingerprint on a single, solitary page in the Book of
Ezekiel was the single best piece of evidence that we had in
what was the only Federal murder case in the last 25 years in
the upstate of South Carolina.
It is because of science. Science convicts. Science
exonerates. Science is what the jury wants. Science is what the
jury needs. And with that, I would recognize the ranking member
from Texas.
Ms. Jackson Lee. Mr. Chairman, what a powerful and eloquent
statement, and it captures the essence of this hearing, and it
shows that the issue of the state of forensic science in the
United States helps victims in many ways: the victims of a
heinous crime, or the victim of being convicted incorrectly.
And that is what justice is about.
I am delighted to welcome Dr. Weedn from George Washington
University, who I know all will be introduced as we return. Mr.
Matthew Gamette from Idaho State, Dr. David Baldwin from the
National Securities Technologies Limited, and of course,
Professor Sandra Guerra Thompson of the University of Houston
Law Center and the chair of the Houston Forensic Science
Center.
I want to take note of the fact, in my home city of
Houston, one such cardinal incident regarding someone convicted
wrongly led to the creation of the Houston Forensic Science
Center, which my constituent and our distinguished guest,
Professor Sandra Guerra Thompson, chairs as the preeminent
national model for forensic science practices.
The Houston Forensic Science Center became a distinguished
model as a result of the willingness of the law enforcement and
judicial community of Harris County to collectively recalibrate
outdated practices relied upon during the George Rodriguez case
and so many others leading to wrongful convictions.
Mr. Rodriguez was sentenced to 60 years in prison in 1987
for sexual assault. His conviction was based on inaccurate body
fluid evidence and hair analysis. One important aim in the
quest for reliability in forensic scientific evidence, which I
look forward to hearing the witnesses' testimony, is to
acknowledge and correct the calamities of our judicial system's
failure to obtain the ends of justice rightly and claiming as
casualty those who have been wrongfully convicted in our
communities.
In 2001, the Innocence Project took on the Rodriguez case.
A judge ordered testing on the remaining evidence. A showing
was made that the Houston Police Department's HPD crime
laboratory, as has been found common among investigatory
facilities in many jurisdictions, mishandled, not purposely,
the retesting of biological materials, and the laboratory was
ultimately shut down due to the insecure integrity of its work
in numerous cases. After a man erroneously served 17 years in
prison, we must consider the serious consequences of such cases
where subsequent laboratory retesting excludes suspects like
Mr. Rodriguez as a viable match to all DNA evidence, allowing
his conviction to be vacated and affirming the innocence he
maintained all around.
The scales of justice, Lady Justice, requires that we
adhere to the principles of justice, and that is that those who
do the crime are under the hand of justice, receive the
penalty. Those who are innocent receive the victory.
The HFSC, which operates independently of law enforcement
and with full transparency, is now in place, beginning in 2014,
with a mission to receive and analyze and preserve physical and
digital evidence.
Let me take note of the fact that this crime lab is the
only crime lab in the Nation to implement blind proficiency
testing. So, I am very glad to look forward to the testimony.
And they have overturned 119 convictions. George Rodriguez is
one of the cases, Mr. Chairman, that they have done so.
Let me, again, acknowledge the importance of this hearing,
but as well, let me acknowledge the importance, Mr. Chairman,
of us working together on a number of other issues. As we look
at these witnesses, I would like to see hearings dealing with a
restoring or reviving the effort that we made on criminal
justice reform, which would include sentencing reduction--in
the last Congress, it was H.R. 3713; to see prison reform,
which we introduced in the last Congress; and as well, the
Tiffany Joslyn Juvenile Block Grant Reauthorization and Anti-
Bullying Prevention and Intervention Act, and then the Law
Enforcement Trust and Integrity Act.
Both of us serve on the Police Working Group, and we
recognize our important Congress influence in that. And I do
believe both of us serve on the Crime, Terrorism, Homeland
Security, and Investigations, which this committee is, and this
hearing pertains specifically to that.
The bills that I just suggested pertain specifically to
rendering a criminal justice system that is fair to all, Mr.
Chairman, but we do deal with issues of criminality, and I
believe that it is important, without making any suggestions,
that we get the information under our jurisdiction relating to
issues of Russia, Russian collusion, and also any comments
being made about the actions of a former President as it
relates to wiretapping. I know that we will have FISA hearings,
but I hope that we will be able to pursue these, as I know the
Senate subcommittee so named did the same.
I want to thank you, Mr. Chairman, for yielding to me, and
I look forward to working with you on a number of issues,
including what we are having before us, as well as the issues
that I indicated in my remarks. With that, I yield back.
Mr. Gowdy. Well, I will thank the gentlelady from Texas,
and I would agree with her 100 percent. We need a justice
system that is not only respected, but one that is worthy of
respect, and you have been a champion in any number of regards
on that, and I look forward to working with you as we try to
make sure we have a justice system that is respected.
With that, Ms. Jackson Lee and I will retire to vote. I
mean that figuratively, not literally. We will go vote, and we
will come back. And please accept our apologies for any delay.
We will be back as quickly as we can.
And with that, we are in recess.
Mr. Gowdy. The committee is back in order. The chair will
now recognize the gentleman from the great State of Virginia,
the chairman of the full committee, Mr. Goodlatte.
Chairman Goodlatte. Well, thank you, Mr. Chairman. I thank
you very much for holding this important hearing today.
The use of forensic science to solve crimes has existed for
centuries. One of the first recorded examples occurred in the
year 1248. A Chinese book entitled The Washing Away of Wrongs
detailed how to differentiate between strangulation and
drowning. It is believed to be the first recorded application
of medical knowledge used to solve a crime.
Fast forward 739 years to the year 1987, and the field and
the world witnessed a truly remarkable breakthrough in forensic
science. While I am certain that our distinguished panel is
familiar with the names of Richard Buckland and Colin
Pitchfork, some may not be familiar with their story. Their
story is the same story, but one with vastly different endings.
In 1983, and again in 1986, two 15-year-old girls were
raped and strangled to death. Using forensic science techniques
available at the time, police linked samples taken from their
bodies to a person with type-A blood and an enzyme profile that
matched only 10 percent of males. The prime suspect was Richard
Buckland, a 17-year-old juvenile.
In the time between these two linked murders, Dr. Alec
Jeffreys, a genetics researcher at the University of Leicester,
developed DNA profiling, along with Peter Gill and David
Werrett. Dr. Jeffreys and his colleagues demonstrated that it
was possible to obtain DNA profiles from old samples. Using
this technique, Dr. Jeffreys compared samples from both murder
victims against a blood sample from Buckland and conclusively
proved that both girls were killed by the same man, but not
Buckland.
Thus, Buckland became the first person to be exonerated
through DNA testing. Dr. Jeffreys would later go on to state
that he had ``no doubt whatsoever that Buckland would have been
found guilty had it not been for DNA evidence.''
Police undertook an investigation in which more than 5,000
local men were asked to volunteer blood or saliva samples.
After 6 months, no matches were found. In August of 1987, a
coworker of Colin Pitchfork revealed to fellow workers in a pub
that Pitchfork had paid him to give a sample while pretending
to be Pitchfork. A bystander who overheard the conversation
reported it to police. The following month, Pitchfork was
arrested. Pitchfork confessed to both murders, and scientists
found that his DNA profile matched that of the murderer. Thus,
Pitchfork became the first person convicted of murder based on
DNA profiling evidence.
Over the ensuing 3 decades, law enforcement has come to
rely on forensic science every day. Forensic science produces
investigative leads and helps exonerate or convict persons of
interest. It remains today, and will continue to be in the
future, an invaluable tool in solving crimes of all types. In
order for forensic science to be effective, it must be based on
sound science and practiced by highly-skilled and trained
professionals. The Federal Government should do its part to
encourage State and local law enforcement to utilize critical
DNA analysis.
The House Judiciary Committee is doing its part.
Last Congress, this committee reported out the Rapid DNA
Act of 2016, a measure authored by the gentleman from
Wisconsin, Mr. Sensenbrenner. The Rapid DNA Act amends the DNA
Identification Act of 1994 to require the Federal Bureau of
Investigation to issue standards and procedures for using rapid
DNA instruments to analyze DNA samples of criminal offenders.
While it once took days or weeks to ascertain, DNA testing can
now be completed in a matter of hours. The Rapid DNA Act would
ensure that this technology would be available to local law
enforcement agencies.
As our criminal justice system continues to rely heavily on
forensic science, we need to ensure that the public's
confidence in that system remains high, and this committee will
do its part to meet that goal. I want to thank our witnesses,
and I look forward to your testimony today. I yield back, Mr.
Chairman.
Mr. Gowdy. The chair thanks the gentleman from Virginia. It
is now my pleasure to introduce our distinguished panel of
witnesses. I will begin by asking you to please rise and take
the oath, which we administer to all witnesses in this
committee.
Would you please raise your right hand? Do you swear the
testimony you are about to give will be the truth, the whole
truth, and nothing but the truth, so help you God?
Let the record reflect all the witnesses answered in the
affirmative. You can have your seat.
I will introduce you en banc, and then I will recognize you
individually. We will just say up front, given the fact that we
have a pretty tight window given the votes on the other side,
your complete statement is in the record, and all members of
the committee will have a chance to look at it. And I am going
to have a little bit of help introducing witnesses today
because we have some folks that are interested in helping with
that. So, give me one moment.
Our first witness is Dr. Victor Weedn. He is a professor of
forensic sciences at George Washington University. He is also a
forensic pathologist and an attorney, who established the Armed
Forces DNA Identification Lab, served as the medical examiner,
and directed a regional crime laboratory.
Dr. Weedn recently concluded his detail as senior adviser
to the Deputy Attorney General at the U.S. Department of
Justice.
Our second witness is Mr. Matthew Gamette, and if I
mispronounce your names, I apologize, and you feel free to
correct me. And I probably did, based on your expression. Mr.
Gamette has extensive experience in forensic sciences, having
served in academic research and law enforcement capacities. He
is currently the laboratory system director of the Idaho State
Police Forensic Services.
Mr. Raul Labrador wanted me to welcome you. He is on the
committee, but not the subcommittee.
Our third witness is Dr. David Baldwin, manager and
principal investigator for research supporting forensic science
at the Special Technologies Laboratory of National Security
Technologies, LLC. Dr. Baldwin formerly served as director of
the U.S. Department of Energy's laboratory in Ames, Iowa. He is
a graduate of Lebanon Valley College and the Massachusetts
Institute of Technology. And with that, I would recognize my
colleague from Texas to introduce our final guest.
Ms. Jackson Lee. Mr. Chairman, thank you for your
courtesies. I am privileged to be able to introduce Professor
Sandra Guerra Thompson, and I want to say how delighted I am
that you had come back home, being a Laredo native, and that we
have you here in Houston, Texas, in my district.
You are the alumni college professor in law and director of
the Criminal Justice Institute at the University of Houston Law
Center. Since joining the faculty in 1990, she has authored
numerous articles on criminal law topics, such as eyewitness
identification and wrongful conviction, immigration crimes,
jury discrimination, police interrogations, Federal sentencing,
and asset forfeiture.
She is a recipient of the University of Houston's
Distinguished Leadership in Teaching Excellence in 2015;
students love her--as well as a Teaching Excellence Award in
2003, and the Ethel Baker Faculty Award in 2000. She has
received numerous awards, and she was the editor of the Yale
Law Journal, and a graduate of Yale University, B.A., and a
J.D. from Yale University. And so, she's a fellow alum.
Thank you so very much, and you are welcome. I yield back,
Mr. Chairman.
Mr. Gowdy. The gentlelady yields back. Welcome to all of
our witnesses.
Dr. Weedn, you will be recognized for 5 minutes.
Chairman Goodlatte. Mr. Chairman, I don't believe the
witness has a microphone on.
Mr. Gowdy. That is a very good piece of investigatory work,
Mr. Chairman.
Dr. Weedn. Excuse me.
Mr. Gowdy. No forensics needed.
STATEMENTS OF VICTOR WEEDN, PROFESSOR OF FORENSIC SCIENCES,
GEORGE WASHINGTON UNIVERSITY; MATTHEW GAMETTE, LAB SYSTEM
DIRECTOR, IDAHO STATE POLICE FORENSIC SCIENCE; DAVID BALDWIN,
SPECIAL TECHNOLOGIES LABORATORY, NATIONAL SECURITY
TECHNOLOGIES, LLC; SANDRA GUERRA THOMPSON, PROFESSOR,
UNIVERSITY OF HOUSTON LAW CENTER, AND CHAIR, HOUSTON FORENSIC
SCIENCE CENTER.
STATEMENT OF VICTOR WEEDN
Dr. Weedn. I am sorry. Well, Chairman Gowdy, Ranking Member
Lee, and other members of the subcommittee, good afternoon. It
is an honor and a privilege to be here. Thank you for the
opportunity to address the committee on this important topic.
Forensic science has become critical to our criminal
justice system. And while forensic science has been important
for some time, its pervasive use, power, and household
familiarity has been a relatively recent phenomenon.
Governments and the criminal justice system are still adjusting
to this development. This adjustment within the Federal
Government is lagging.
The voice of the forensic science community is not
commensurate with this new role, and accordingly, the forensic
science community has been relatively neglected and
inadequately supported.
The 2009 National Academies of Sciences report on the
forensic sciences criticized the practice of forensic science
in the United States and recommended enhanced standard-setting
efforts, increased research and development to ensure adequate
scientific foundations, and autonomy from law enforcement
pressures.
To address the standards, the Department of Justice reached
out to the National Institute of Science and Technology, or
NIST, and transferred the standard-setting activities from DOJ
scientific working groups to establish the NIST OSAC, the
Organization of Scientific Area Committees, which is
effectively and independently advancing and recommending
standards in the field. However, the OSAC is not codified and
does not have a permanent funding stream. Therefore, its future
is in question. It should be institutionalized and codified.
On the other hand, research and development has not
advanced as much as is needed. Recently, the President's
Council of Advisors on Science and Technology, or PCAST,
criticized the scientific foundations of pattern and impression
evidence. And while the interpretations and conclusions of the
PCAST report are debatable, the report is absolutely correct on
the need for additional research to enhance capabilities and
instill confidence in the examination and tests performed every
day by the forensic science community.
Furthermore, forensic science, as currently practiced, is
stressed and inadequately supported. The Bureau of Justice
Statistics' latest census of publicly-funded crime laboratory
reports significant casework backlogs. Important discussions on
DNA mixture deconvolution, statistical interpretation, and
language for reporting and testimony need Federal attention.
Presently, the only grant available that exists for addressing
at least some of these issues is the Paul Coverdell Act, which
you recently reauthorized in the Justice for All
Reauthorization.
While detailed to DOJ as the senior forensic adviser to the
Deputy Attorney General, it became clear to me that the
creation of an outwardly-facing, grant-making Office of
Forensic Sciences, or OFS, from a consolidation of existing
programs within DOJ, given a forensic science mission and an
elevated position within the DOJ structure, and with an
advisory board from leaders in the forensic science community
outside of DOJ, would be an important step to correct many of
these concerns.
The currently-existing unit within DOJ that most closely
resembles this activity is the Office of Investigative and
Forensic Sciences, buried within the Office of Justice Programs
in the National Institute of Justice, the research development
and evaluation arm of DOJ.
NIJ's mission statement does not specifically mention
forensic science. NIJ began primarily as a social science
research institution, largely catering to academic departments
of criminology. Under the original 1968 legislation, NIJ was
authorized ``to carry out programs of behavioral research
designed to provide more accurate information on the causes of
crime and the effectiveness of various means of preventing
crime, and to evaluate the effectiveness of correctional
procedures.''
The Division of Science and Technology was created in 1992
with a budget of between $2 and $4 million annually and a staff
of four. By 1994, the successor Office of Science and
Technology, or OST, represented 18 percent of NIJ's overall
budget, and by 2008, the budget for OST represented more than
80 percent of NIJ's overall budget, while the social science
research budget stagnated. Thus, NIJ was created and continues
as a social sciences shop, but the hard, forensic science
component has grown so fast that the social scientist directors
of NIJ often feel compelled to hold down the forensic science,
so that it will not consume their social science budget.
Social science and forensic science should not compete
within the same division headed by a social scientist. The OFS
director should be a forensic scientist with stature in the
field, while the NIJ should continue as a social science shop
and with a social scientist director.
Such an office would provide a voice for forensic science
appropriate to its new role and would provide a vehicle for
support to the State and local community that performs about 95
percent of forensic science testing in the United States. Such
an office would also establish a mechanism to combat the opioid
crisis, if funded.
I have provided to the committee documents that I wrote
regarding how this could occur. I appreciate this opportunity
to address the committee on such important matters, and I look
forward to your questions.
Mr. Gowdy. Thank you, Dr. Weedn.
Mr. Gamette?
STATEMENT OF MATTHEW GAMETTE
Mr. Gamette. Chairman Gowdy and Ranking Member Jackson Lee
and members of the committee, my name is Matthew Gamette, and I
am a laboratory system director for the Idaho State Police
Forensic Services Laboratories, with three multi-disciplinary
laboratories and 44 employees. I am also the chair of the
Consortium of Forensic Science Organizations that represent six
major forensic science organizations. We have over 21,000
practitioners that we represent.
Approximately 95 percent of the forensic work in this
country is done by State and local forensic science service
providers, or FSSPs, like my laboratories. Requests for service
and analysis are exponentially increasing, and the funding is
steadily decreasing for most forensic science disciplines.
From 2011 to 2015, the number of heroin submissions to my
laboratory increased 586 percent. In roughly the same period,
the CDC reported a national increase of 248 percent in drug
poisoning deaths attributed to heroin. In Idaho alone, the
number of deaths attributed to heroin in that period increased
1,100 percent. Labs around the country are being overwhelmed
with cases involving heroin, synthetic drugs, marijuana, and
other drugs of abuse. The Maryland medical examiner's office
workload has increased 300 percent since 2014.
Because of the associated increase in autopsies per
pathologist, the Connecticut medical examiner's office has lost
their full accreditation, and the Maryland medical examiner's
office is in danger of a downgrade to its accreditation.
Federal legislation and funding has largely addressed treatment
and enforcement, but resources have not been allocated for
labs, coroners, and medical examiners to deal with this heroin
epidemic.
Other disciplines are also seeing increased requests. In
Idaho, latent print submissions are up 80 percent, and drugged
driving submissions are up 88 percent over the last 2 years.
Nationwide, there are 3.8 million requests each year for
forensic examinations in support of the criminal justice
system.
Not surprisingly, there are case backlogs all over the
country. Labs cannot develop new methods fast enough and cannot
afford the equipment to keep up with emerging issues like these
drug issues. The delay in analyzing evidence creates delays in
the criminal justice system, affecting speedy trial rights of
defendants.
These caseloads, backlogs, and personnel shortages are only
an estimate for major State and local laboratories. There is
still no estimate of how many FSSPs exist in the country. The
Bureau of Justice Statistics surveys 409 larger laboratories on
a regular basis, but the number of small, latent, print-and-
identification units, digital forensics laboratories, and other
one- or two-person forensic practitioner units is still
unknown. The shortfalls I report on today are surely greater
than we can now calculate.
Many years ago, the community itself pushed to adopt more
robust international accreditation standards, and last year,
the Attorney General recognized the importance of accreditation
for crime laboratories in a directive she published that all
Federal labs would be accredited by 2020. While 99 percent of
State laboratories are accredited, many small operations are
not. The most frequent obstacle to accreditation is the cost.
The Maryland medical examiner's office spent 54 million on
facility needs to meet accreditation requirements. It costs
hundreds of thousands of dollars each year in positions,
training quality assurance to meet all of the stringent quality
and management criteria of accreditation in my laboratory.
Training and ongoing education is another imperative for
laboratory personnel. Training in most laboratory disciplines
can take several years and cost the laboratory hundreds of
thousands of dollars to train one, single examiner.
Training is also a desperate need in the areas of forensic
nursing and forensic pathology. It is extremely difficult to
recruit and retain the number of medical doctors, who are
pathologists, needed to perform forensic autopsies. The Paul
Coverdell Granting Program is critical for forensic science
service providers. Each year, we encourage DOJ and the White
House to include Coverdell in their budget recommendations. It
is extremely disappointing that, with the critical needs of
forensic science, this funding has not been recommended in the
President's budget for some time.
Fortunately, Congress and this body has stepped up with
Coverdell funding in support of forensic science. Coverdell is
one of the only Federal granting programs for medical examiners
and also many laboratory disciplines. While we are extremely
grateful for the funding, so much more could be done with a
fully-appropriated Coverdell program, and we encourage you to
fund Coverdell to the full authorization amount.
The Department of Justice reported that 125 excellent
requests were made last year for Coverdell competitive funding
that were not able to be fulfilled due to a lack of funding.
Over $14 million in needed instrumentation and training from
mostly State and local labs could not be funded to support the
criminal justice system of this country. Even a very small
investment in the Federal budget could make a huge difference
in this community.
We believe that more input is needed, from State and local
practitioners to high-level decision makers at DOJ, to
communicate the outcome opportunities and challenges of Federal
granting programs. Sometimes, small changes in a granting
program can have huge, unintended impacts and consequences on
State and local practitioners. We believe that even more
substantive conversations are needed with DOJ and Congress
regarding forensic operational needs, research needs,
technology transfer, and impacts of DOJ policy on State and
local labs. More resources are needed; more State and local
issues must be discussed; and ultimately, more Federal
leadership is needed in forensic science practice in the United
States.
Mr. Chairman, the American Society of Crime Laboratory
Directors, the National Association of Medical Examiners, the
Society of Forensic Toxicologists, the American Board of
Forensic Toxicology, the International Association of
Identification, and the International Association of Forensic
Nursing supports the OFS as laid out previously by Dr. Weedn.
Mr. Gowdy. Thank you, Mr. Gamette.
Dr. Baldwin?
STATEMENT OF DAVID BALDWIN
Dr. Baldwin. Good afternoon, and thank you, Chairman Gowdy
and Ranking Member Jackson Lee, for this opportunity to address
the subcommittee. I want to talk to you today about the need
for a wide range of research and development in the field of
forensic science.
I am telling you this based on almost 20 years of working
with the forensic science practitioner community to understand
the challenges that community faces in delivering the best
scientific analyses they can for our legal system. I have
worked with these practitioners in partnerships on research
projects, developing and delivering new training, and building
partnerships with universities to improve forensic education,
and collaborating with lab directors to find better business
and operations methods, and in participating in the community's
standard-setting organizations.
My perspectives on research needs in this field have come
from the community's critical introspection, as well as the
aspiration of these science professionals. Some of the most
topical and timely research needs relate to studies to better
understand the reliability, and therefore the value, of
forensic science analyses. My particular interests are in
research for the pattern evidence fields. Many of these same
issues and areas apply more broadly across all of forensic
science. In order to communicate the proper weight and value to
give to a particular scientific analysis, it is important to
have an idea of the reliability of the evaluation. Some of
these studies, sometimes called black box studies, have been
performed, and more are anticipated.
Given my prior experience in designing and executing a
reliability study for firearms analysis, I am convinced that
research is needed to help develop 3-D imaging technologies
that preserve evidence and present it in a way that can be used
by examiners for comparisons. There are several reasons and
benefits to this development. The most immediate has to do with
the issues associated with assembling one of these studies.
Firearms examiners make very few errors. When you design an
experiment to measure a very small error rate accurately, you
need a large sample set with lots of materials, lots of
examinations, and many participants. Use of 3-D image sample
sets will greatly reduce the difficulty and cost of assembling
these studies, allowing faster progress on these priorities.
A lot of this research has begun at some level. The current
environment for forensic science research includes resources
managed by many agencies across the Departments of Justice,
Commerce, Defense, and Homeland Security. It is important to
understand that forensic science is still a developing field of
research and development. To encourage that development, the
field needs more than a handful of studies and a few more
practitioners. There needs to be sustained, fundamental basic
and applied research, advanced engineering, and robust testing
and evaluation. This level of effort needs to attract students,
faculty, and lab researchers that dedicate their careers to
forensic science research.
Over the years, I have developed programs to partner with
crime laboratories to provide resources to satisfy a wide range
of needs. During my time at Ames Laboratory in Iowa State
University, I and my colleagues developed a strong partnership
with Federal, State, and local crime laboratories in a 16-State
region to provide access and a means to develop resources for
forensic science. It was called the Midwest Forensic Resource
Center. The goals of the center, developed with our stakeholder
partners, were to provide access to experts and unique
instrumentation, to develop and deliver shared training to
improve the level of interaction between crime labs and
forensic science educational programs, to perform research and
collaboration with crime labs, and to test and evaluate new
business and infrastructure models for public laboratories.
I recently left the University and Federal Ames lab. I now
work as an R&D manager at Special Technology Laboratories. SCL
is a division of National Security Technologies, an NSA-owned
research facility. I am here working with some of my old
partners from the MFRC, such as Director Gamette of Idaho, to
establish a new resource center for the Western States region.
This new center is to be built around the resources of STL in
California and the Nevada National Security Site and the Remote
Sensing Laboratory in Nevada. We believe this partnership will
continue to find effective ways of developing and delivering
resources to improve forensic science.
I want to thank you for the opportunity to speak with you
today and share my vision of what needs to be done to move
forensic science forward.
Mr. Gowdy. Thank you, Dr. Baldwin.
Ms. Thompson?
STATEMENT OF SANDRA GUERRA THOMPSON
Ms. Thompson. Chairman Gowdy, Ranking Member Jackson Lee,
thank you for your invitation to be here. I want to echo the
comments made by the panelists today, and I would also add my
concern, which is that I believe that forensic science should
be moved in the direction of independence from law enforcement.
My comments today are based on extensive national research that
I did for a book which was published in 2014 called Cops in Lab
Coats: Curbing Wrongful Convictions through Independent
Forensic Laboratories, as well as my work as the vice chair of
the board of directors for the Houston Forensic Science Center,
Houston's crime lab.
Local communities pay dearly when forensic science gets it
wrong. Wrongful convictions ruin lives and families. Hundreds
of people have been wrongly convicted through faulty forensic
science, and those are only the ones that we have discovered.
When innocent people are wrongly convicted, victims do not get
true justice, and actual perpetrators remain at large, often
committing more crimes against more victims. And local
taxpayers lose when localities are forced to pay millions of
dollars in damages and when localities are forced to conduct
large, retrospective reviews of thousands, and even tens of
thousands, of past convictions to determine whether the same,
flawed forensic evidence may have been present in those cases,
as well. And the most important concern is that communities
lose faith in the entire criminal justice system if there are
wrongful convictions caused by faulty forensic science.
Houston learned this the hard way. The Houston Police
Department crime lab was once called the worst crime lab in the
country by the New York Times in the early 2000s. From 2002 to
2009, the HPD crime lab struggled, and the city paid millions
of dollars in damages and for remedial efforts. But this is not
a unique story.
In Ohio, the Cleveland Police Department crime lab had
similar exonerations and multimillion dollar damages from
lawsuits. Labs in Florida, Maryland, New York, California,
Massachusetts, Montana, West Virginia, and many others have had
serious, documented scandals, as well. Some analysts have been
arrested. Others have committed suicide. Some labs have been
closed. For example, most recently, the Austin Police
Department's DNA lab is undergoing such a closure and major
scandal, as well.
In 2009, the National Academy of Sciences published its
comprehensive landmark report calling for many changes to
improve the nature of forensic science, and it made repeated
calls for making forensic laboratories independent from law
enforcement.
Independence reduces the influences that can create
motivational bias and unconscious, cognitive biases. It can
better position labs to obtain adequate funding; whereas
laboratories within police departments constantly compete
against other, seemingly more pressing police priorities.
Moreover, law enforcement administrators are not generally
qualified to supervise a scientific enterprise.
The city of Houston closed its HPD crime lab in 2014 and
created an independent lab, the Houston Forensic Science
Center. This lab has quickly become a pioneering forensic
laboratory that now serves as a national model. It operates
transparently and efficiently and employs cutting-edge quality
control procedures that have brought it national and
international recognition. As Congress considers the future of
forensic science, I urge you to keep in mind the critical need
for independence as recognized by our country's most esteemed
scientists in the NAS report.
Consider this excerpt: ``There is strong consensus in the
NAS committee that no existing or no new division or unit
within DOJ would be an appropriate location for a new entity
governing the forensic science community. DOJ's principal
mission is to enforce the law and defend the interests of the
United States according to the law. The entity that is
established to govern the forensic science community cannot be
principally beholden to law enforcement. The potential for
conflicts of interest between the needs of law enforcement and
the broader needs of forensic science are too great.''
To conclude, I believe that scientists should administer
and oversee the effort to improve forensic science. This is not
to say that law enforcement should not serve an advisory role,
but the administration of forensic science research and the
development of protocols and standards should be situated
within scientific institutions, not law enforcement agencies,
and I say this as a prior prosecutor myself. Thank you.
Mr. Gowdy. I thank the witnesses for their opening
statements. The chair would now recognize the chairman of the
full committee, Mr. Goodlatte, for his questions.
Chairman Goodlatte. Thank you, Mr. Chairman. Dr. Weedn,
with respect to your proposal for the Office of Forensic
Science within the Department of Justice, how can we be
confident that it will maintain autonomy within the department,
and how much would something like that cost?
Dr. Weedn. First, the proposal is primarily a consolidation
of existing programs, so it is largely revenue-neutral. The
autonomy issue, I believe that, by raising the voice of
forensic scientists within the Department of Justice, you now
have a voice that can stand up to other pressures. Right now,
forensic science is not being spoken to by forensic scientists,
if at all.
Also, the Office of Forensic Science could have statutory
language that could help in this regard. The National Academy
of Sciences performed a study on the NIJ and said there needed
to be greater independence, and the result of that was a final
approval authority. That same final approval authority could be
given to this OFS. We also could have the office make sure that
they adhere to the scientific and research integrity policy of
the department.
Chairman Goodlatte. Thank you. Let me interrupt there.
Since I have got a limited amount of time, I want to follow
up with Mr. Gamette on that question. In Idaho, what safeguards
do you have in place to ensure autonomy from law enforcement,
given that you report to the State police?
Mr. Gamette. Thank you, Mr. Chairman. I do work for the
Idaho State Police. I work in the Forensic Services Division of
the Idaho State Police, and we have taken great cautions to
assure autonomy of our laboratory system from the parent
agency.
So, one of the things we do is we hire scientists to work
in the laboratory. We hire people with bachelor's degrees,
master's degree, and Ph.D.'s to work in the laboratory system.
We have a laboratory system director, myself. My position was
created 2 years ago to assure that autonomy. And also, I have a
background in science. My degree is in science. We have
accreditation requirements that require that we are autonomous
from our parent organization and that we take safeguards there,
several standards, international standards that we abide by,
and that we are assessed and audited to on a yearly basis.
I also believe it is a concept of strong leadership and
management within the scientific community, within our
scientific community, in our laboratory. We have a strong
management system of scientists. Our budget is set by our State
legislature. They review all of the budgets that we have. The
governor's office reviews the budgets that we have. We have
strong reporting to our court systems, to our supreme court in
the State, and we have made it a priority in our State to do
forensic science----
Chairman Goodlatte. Let me interrupt and ask, do you ever
feel undue pressure from law enforcement to reach a particular
conclusion in a case?
Mr. Gamette. Chairman, I have worked in forensic science
for 15 or 16 years, and in that amount of time, I have never
felt pressure from a law enforcement officer or entity to reach
a certain conclusion or to alter a conclusion that I had
reached----
Chairman Goodlatte. Good.
Mr. Gamette. In favor of law enforcement.
Chairman Goodlatte. What do you think of Dr. Weedn's
proposal for an Office of Forensic Science at the Justice
Department?
Mr. Gamette. I believe it is strong. I support it. I
believe it brings increased visibility at the Department of
Justice. It gives us more visibility on issues like Coverdell.
For example, the Department of Justice has continually not
requested funding for Coverdell. We continue to come to
Congress and ask for that funding to be restored. We believe
that a stronger voice within the Department of Justice will
raise that level of interest in that issue. We also believe it
will result in better communication with State and local
laboratories.
I would point to the FBI hair review process. Most of the
State and local laboratories will be impacted by that. They
will have to do reviews on the State and local level. Now, with
those things, the communication was not flowing from the FBI
for a long period of time. Hopefully, we fixed some of that,
but prosecutors were somewhat surprised when they got letters
from the FBI and didn't know how to deal with that.
We need resources for emerging issues, and it is important
for us to be able to communicate with DOJ what those emerging
issues are.
Chairman Goodlatte. Let me cut you off there, too, because
I am interested in the emerging issues, but I am also
interested in hearing Ms. Thompson's perspective on what we
have just been talking about.
So, do you think that a forensic scientist employed by a
law enforcement organization can be unbiased?
Ms. Thompson. I can, and I do not think that the
recommendations to make forensic science independent from law
enforcement is, in any way, an indictment on the integrity of
the forensic scientists themselves. That is not the point.
The point is that, at the end of the day, the Department of
Justice is a law enforcement agency headed by law enforcement,
and my belief is that forensic science institutions,
organizations should be independent of those law enforcement
agencies, so that they are directed by individuals who have an
understanding of the culture of science. And I think the
arguments that are made here today for an Office of Forensic
Science are made largely on the view that, to date, the
Department of Justice has not prioritized forensic science in
the way that it should, that they have not come looking for
Coverdell funding and the like. And so, I think the track
record is one that proves my position.
Chairman Goodlatte. Thank you very much, Mr. Chairman.
Thank you to the witnesses.
Mr. Gowdy. The gentleman from Virginia yields back. The
chair would now recognize the gentleman from Michigan, the
ranking member of the full committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Gowdy. I want to join you
in saluting these witnesses, and that you would pick this
subject to bring to the attention of not only the members of
Congress, but our citizens across this great land on the state
of forensic science in our country. I think it is so important.
And so, Professor Thompson, I wanted to direct a couple of
notions, ideas, to you. How are you, as an independent
laboratory, able to support opportunities for science and law
enforcement to work together?
Ms. Thompson. So, with regard to our experience in Houston,
the laboratory works closely with the Houston Police
Department. It is independent of the police department, but we
work with the investigators, and we listen to them, and we have
regular discussions with them to ensure that the work that is
being done meets their needs.
And so, for example, in the latent print area, there was a
backlog that developed because the laboratory tests were not
being properly coded, and they were not getting to the lab. So,
we ended up with an enormous backlog of a year's worth of work
that was brought one day to the lab. Well, in discussions with
the investigators, our lab examiners were able to devise a new
method for providing them with quick responses, so that they
could quickly exclude people whose prints had been picked up
and report back on investigative leads in other cases. And that
kind of expedited process came through this regular
communication that we have with the police department.
At the same time, however, there is a culture in this lab
that it does not report to law enforcement. The culture is that
our client is the criminal justice system, as a whole, and the
citizens of the city of Houston, and I think it is a very
important culture that is created that we have tried to foster.
Mr. Conyers. How was it that, in Houston, you came across
or developed the first independent way to approach forensic
science?
Ms. Thompson. The best that I can say, sir, is that Houston
tried, for many years, to improve the reputation of the Houston
Police Department crime lab, but the lab was so dysfunctional
and had so many problems in so many disciplines, and so many
wrongful convictions, and the reporting on it was persistent
for so many years that, ultimately, when the National Academy
of Sciences came out with its report calling for independence,
city leaders decided that, perhaps, that was the only way to
finally put the scandal behind them.
And so, they decided to take a very bold step and remove
the lab from the administration of the police department and
create what is called local government corporation. It is
overseen by a board of community volunteers, such as myself,
together with a Technical Advisory Group. And I will say, the
Technical Advisory Group has forensic scientists on it, but it
also has university research professors, as well, research
scientists. And so, it is a completely different model of
administration, but it has been, so far, I would say, quite
successful.
Mr. Conyers. Now, I want to ask the three gentlemen who are
witnesses, what do you see as the major problem in creating an
independent laboratory yourselves. Anybody want to give us an
idea of what you are up against?
Dr. Weedn. I will start.
Mr. Conyers. Please.
Dr. Weedn. To me, it is fine if a local jurisdiction wants
to create an independent lab or not. I think an OFS could
result in enhanced recognition support for all the labs, public
or the quasi-public kind of operations. I just see that as a
separate issue and, really, a states' rights issue for the
states to deal with themselves.
I think the Department of Justice is not going to get out
of the justice business any time soon. I do not see them likely
to give up their FBI, ATF, and DEA crime labs. And therefore, I
think there needs to be an Office of Forensic Science within
DOJ, regardless of any other, outside forensic science entity.
Mr. Conyers. Any hope for our new Department of Justice?
Dr. Weedn. Well, sir, I do not really want to argue this
point because I do not have much of an oar in that basket,
other than to say the Department of Justice, I believe, really
needs an Office of Forensic Science.
Mr. Conyers. Absolutely. Anybody else want to volunteer?
Mr. Gamette. Mr. Conyers, I wish to quote, just a second,
from the National Academy of Sciences report from 2009, and it
states this: ``Ideally, public forensic science laboratories
should be independent of, or autonomous within, law enforcement
agencies.'' So, I do not necessarily agree that there is one,
and only one, model for a forensic science laboratory in this
country. There are many models. Some report directly to
Governors. Some report to attorney generals. Mine reports
within the State police. I think there are a number of models
that could be successful.
This is one model that Houston has chosen, and I will not
be critical of that model. It is new. I think they are still
learning, and I think there are things to be learned from this
model. But I do not advocate for one, specific model because,
as Dr. Weedn stated, it is a State and local issue.
Mr. Conyers. It is the independence that I think you put a
lot of emphasis on.
Dr. Weedn. I would like to make a further comment that,
really, one of the important things is the standards that are
being developed. Right now, they are being developed at the
National Institutes of Standards and Technology, completely
outside of the Department of Justice. I think that needs to
continue. But that means that all the crime labs, public or
otherwise, are really looking to those same standards, and that
is being developed outside of DOJ.
Mr. Conyers. Dr. Baldwin, do you have any comments on this
question?
Dr. Baldwin. No, sir, I do not.
Mr. Conyers. All right. Finally, my last question is
directed, again, to Professor Thompson. Has having an
independent lab facilitated any ability for the Houston lab to
contribute to the Scientific Research Foundation for Forensic
Disciplines?
Mr. Gowdy. You may answer the question.
Ms. Thompson. I will answer to the extent that I can. I am
not an employee of the lab. So, I am on the board of directors.
And I also really can't say what other labs are doing by
contrast to what we are doing. But we do have a lot of grant
work. I am not sure that it is any different from the kind of
research that is, perhaps, being done in other laboratories, so
I do not want to make false claims.
Mr. Conyers. Surely. I understand. Thank you. Chairman
Gowdy.
Mr. Gowdy. I thank the gentleman from Michigan. The chair
would now recognize the gentleman from Texas, the former United
States Attorney, Mr. John Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman. I would like to ask
that a statement from the National District Attorneys
Association on the state of forensic science in the United
States dated today, Tuesday, March 28, 2017, be made part of
our record for the hearing. Thank you.
Mr. Gowdy. Without objection.
[This statement can be found at the Committee and is
available online at: http://docs.house.gov/meetings/JU/JU08/
20170328/105786/HHRG-115-JU08-20170328-SD003.pdf]
Mr. Ratcliffe. I want to thank all the witnesses for being
here. This is a really important topic and one that interests
me as a former Federal prosecutor, like the chairman and a
number of the witnesses here.
I want to start on the PCAST report that you mentioned, Dr.
Weedn. I had a chance to read that, and it seems to me that
maybe the keys of forensic science have been handed over to
legal activists. But at the same time, I confess, I know
millions of dollars have been spent recently on commissions and
committees and standard structures and a host of other
initiatives, and yet we find forensic science, frankly, more
maligned and disparaged than, perhaps, ever before. So, I guess
I want to start and ask your opinion on that report: whether
you think it has the scientific rigor, if you will, to defend
its foundational validity.
Dr. Weedn. So first, I will say that is an advisory body
with their own opinion. It, of course, flies in the face of
decades of admission into courts of law across this country. Of
course, there is many thousands of forensic scientists going to
court, defending themselves against cross-examination,
believing in what they do.
I will point out that the PCAST report talks about a
definition of scientific validity that they have no citation or
reference for. It is simply their definition. That definition
for subjective examinations is largely wrapped around black box
studies and known error rates. I will point out to you that, in
order to form an error rate, you have to have a method that was
based upon a principle and mature enough that you can now
assess those error rates. So, it seems to me not so much a
scientific foundation, but later in the process.
But then the other important point is they imply, in the
PCAST report, that, without their definition of scientific
validity being met, it should not be introduced into court,
should not be admissible. I will point out to you that the
Daubert v. Merrell Dow Pharmaceutical Company case that was
decided by the U.S. Supreme Court actually addressed, what is
scientific reliability? And they came up with a set of Daubert
factors, of which known error rates was only one.
Mr. Ratcliffe. Thank you. I want to follow up, because I do
not know if it came out of PCAST or if it came out of the
National Commission on Forensic Science, but recently, DOJ has
made a number of changes in policy that impact what you all do
every day. One of those is that, under the prior Attorney
General, I know that it was ordered that only accredited crime
labs be used by 2020, I think is the year. What impact do you
think that is going to have on the role that you all play?
Dr. Weedn. Well, I will start this answer, but I am sure
Mr. Gamette will continue.
So, I think there were several recommendations that were
dealt with by Department of Justice, and I believe that they
were dealt with in a good fashion. I do not believe that the
recommendation for accreditation has a whole lot of teeth to
it. The Department of Justice itself is largely accredited.
There is only two digital evidence units within the criminal
division section that are not accredited.
The A.G. memo specifically accepted digital evidence in
that accreditation, and in terms of the 2020, then that
suggests that prosecutors should seek accredited labs to admit
the evidence in. However, there is not a lot of power there.
The U.S. Attorney is largely captive to whatever forensic
science testing has been performed.
Mr. Ratcliffe. Mr. Gamette, do you want to weigh in
quickly?
Mr. Gamette. Certainly. Thank you. Accreditation is
important. We believe in accreditation. The Consortium of
Forensic Science Organizations, the members within that,
invented a lot of the accreditations for forensic labs. And we
support the Attorney General in saying that all Federal labs
and Federal prosecutors that are using forensic science at the
local level, which we do some Federal work in States, but I
would also say that 99 percent of the State laboratories are
already accredited.
So, the funding that is going to be needed is in the local
and the bigger local laboratories and the smaller local ident
units, as we call them. And so, we support that. We support her
recommendation. However, the funding is not there, and some of
these commissions that have been stood up have not been
considering the funding aspects of what they are recommending.
We need the funding in order to undergo universal accreditation
for forensic science providers in the country.
Mr. Ratcliffe. Thank you. My time is expiring, but if the
chairman will indulge me, I want to follow up, because another
change that the Department of Justice announced last September
was to direct Federal crime labs to stop or to eliminate using
the term ``reasonable scientific certainty'' from all reports
and from all testimony. Now, as someone that tried a number of
cases in this area, that is a phrase that I heard a lot and
that I used a lot, and I am sure Chairman Gowdy would probably
admit that some of his convictions might have been acquittals,
had that term not been used. So, I am wondering what you
think----
Mr. Gowdy. He does not admit that. He does not admit that.
Mr. Ratcliffe. So, is there significance to that? Am I just
making a bigger deal out of that than I should?
Dr. Weedn. The Department of Justice did conclude that they
should abandon, to the extent possible, the term ``reasonable
scientific certainty.'' There was a recognition, particularly
in the civil context, that you could not necessarily abandon
it, but in the criminal context, it largely is seen as not
having so much meaning. There is not a specific definition.
Often, it is used to bolster testimony. I believe that you can
say the same thing really, in other words, and I do not believe
that it will actually have a whole lot of impact or negative
impact in the community.
Mr. Ratcliffe. Thank you. I yield back.
Mr. Gowdy. The gentleman from Texas yields back the 2
minutes and 32 seconds that he has. The chair would now
recognize the gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I ask unanimous consent to have
my opening statement inserted belatedly into the record.
Mr. Gowdy. Without objection.
I thank the gentleman from Michigan. The chair would now
recognize the ranking member, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the chair very much for yielding.
And it was interesting to listen to a number of the questions,
and particularly the testimony given, or the questions raised
by the witnesses, and so I would like to be able to ask each of
you questions, though it will not be long enough, but
hopefully, I will glean from it some of the intensity of your
remarks.
Let me quickly frame for you, again, an international
question dealing with an FBI statement in 2004 regarding
Brandon Mayfield. And the story, or the facts, are that, after
the March terrorist attacks on commuter trains in Madrid,
digital images of partial, latent fingerprints obtained from
plastic bags that contained detonator caps were submitted by
Spanish authorities to the FBI for analysis.
Skipping over the results of an IAFIS search produces a
short list of potential matches. A trained fingerprint examiner
then takes the short list of possible matches and performs an
examination to determine whether the unknown print matches a
known print in the database. Using standard protocols and
methodologies, it was linked to a Brandon Mayfield.
Soon after the submitted fingerprint was associated with
Mr. Mayfield, Spanish authorities alerted the FBI to additional
information that cast doubt on the findings. As a result, the
FBI sent two fingerprint examiners to Madrid, who compared the
image the FBI had been provided to the image Spanish
authorities had.
Upon review, it was determined that the FBI identification
was based upon an image of substandard quality, which was
particularly problematic because of a remarkable number of
points of similarity between Mr. Mayfield's prints and the
print details on the images. However, the ultimate results of
that is that the FBI plans to ask an international panel of
experts to review their examination of the case, and they
proceeded to apologize to Mr. Mayfield and his family for the
hardships that this matter had caused.
So, I think I am gleaning from all of your testimony, you
are very serious about the crucialness of this science in
whatever form it may take for justice, both to solving a crime
like a terrorist act in Madrid, Spain, to the heinous acts of
sexual assault, which, for many years, we would have angst
about DNA kits, which was one of the issues that collapsed the
lab in Houston. Just frightening to know the backlog of DNA
kits.
So, Dr. Weedn, you sort of indicated that, buried in the
DOA, the Office of Investigative and Forensic Sciences, the
Office of Justice Program O.I., OJP, and the National Institute
of Justice, there lies whatever there is in relationship to the
DOJ, aside from the FBI lab at Quantico that all the law
enforcement tend to try and use. Is there some other entity in
the DOJ?
Dr. Weedn. Well, yes, ma'am. So, in terms of forensic
science, they have operational components in the ATF, the DEA,
the FBI, and two small, digital forensics units within----
Ms. Jackson Lee. Those are like labs.
Dr. Weedn. The criminal division. Those are the operational
labs.
Ms. Jackson Lee. Right.
Dr. Weedn. But the OIFS within the NIJ is externally
looking. It really responds to the outside community, if you
will. That is where the outside community gets some support.
But it is small compared to the actual magnitude of the issue,
and it does not have a mission of forensic science. That is a
secondary issue.
Ms. Jackson Lee. And that is your complaint? That it does
not have a focused mission?
Dr. Weedn. It is not only that it does not have a focus on
forensic science, but it does not have a voice that is loud
enough to match its new role in the criminal justice system.
So, I really believe that it needs to be raised in profile and
not under a social scientist shop that keeps it down.
It has grown, obviously. There has been some support, but
it is not near the magnitude necessary. If we look at the
opioid crisis, if I understand correctly, the drugs and crime
solicitation had two proposals funded, both for just sample
preparation. That hardly deals with the national crisis.
Ms. Jackson Lee. Thank you. Let me proceed with my
questioning of Mr. Gamette and the issues that you raised. You
seem to suggest that, on the accreditation issue, the question
of, what quality of lab should there be? Are you suggesting
that it is not worth it to run a high-quality lab? If so, which
of the criteria do you think are unnecessary?
Mr. Gamette. Congresswoman, I did not intend to convey, in
any way, that accreditation is not important. Accreditation is
paramount for a laboratory system in any model in this country.
We fully support accreditation. My lab has been accredited
since 1987. We have been internationally accredited since 2007.
We abide by those standards. We live by those standards. We are
assessed and audited to those standards on a daily and,
formally, on an annual basis. We believe in accreditation. It
makes labs better.
Ms. Jackson Lee. Well, what is your point about the high
cost of accreditation, and what is your response to that? What
are you suggesting? Because these labs cost a lot of money.
Mr. Gamette. Thank you, Congresswoman. Yes. Absolutely, the
cost of accreditation needs to be considered when we are making
a recommendation for Federal laboratories or for State and
local laboratories that are doing Federal work that may be used
in Federal cases or in the trickle-down effect, if we hope to
tie grant funding to accreditation or something of that nature.
Laboratories need help with the funding, especially the very
small, one-, two-person crime laboratories or forensic science
providers. They need the help. They need the support. For my
laboratory, we can support that through State-level funding.
For some, they cannot.
Ms. Jackson Lee. And when you talk about the labs, are you
talking about the labs that deal governmentally or the private
labs?
Mr. Gamette. I am talking specifically about the government
labs.
Ms. Jackson Lee. That may be small and need support?
Mr. Gamette. Correct.
Ms. Jackson Lee. I will pursue a line of questioning. If I
can just finish two questions, Mr. Chairman, I would appreciate
it because I want to get to Ms. Thompson, Professor Thompson.
Dr. Baldwin, I am concerned on the issue that you have
raised, I think, in 3-D images, and so I want to try to
understand. With the 3-D images, in truth, you cannot really
create a representative set of limited data. That is a basic
premise of scientific research. Should we not exercise great
caution in using any such method in court? The 3-D images?
Mr. Gowdy. Dr. Baldwin, I want you to answer, but I want
you to answer as succinctly as you can. We have two more
members to go, and then are going to call votes. So, answer it,
but just as succinctly as you can.
Dr. Baldwin. Yes, ma'am, I think we would be very careful
using it in court. The intent of using the 3-D imaging in the
context I was talking about was providing examiners with
feedback on the quality of the material that they were
examining, so that they could be cautious about very high
quality versus low quality in making their conclusions.
Ms. Jackson Lee. I ask unanimous consent to put into the
record--and as I ask that, if Ms. Thompson can finish and
explain her position on the independence of labs. But I ask
unanimous consent to place in the record the West Virginia Law
Review, by Professor Guerra Thompson, article on the DNA. Can
you just quickly explain your position on labs being
independent?
Ms. Thompson. Yes, ma'am. I think Professor Paul Giannelli,
who is a member of the National Forensic Science Commission,
has written extensively about his concerns on the interference
in scientific research from having so much authority vested
within the Department of Justice. It is not an area that I have
focused on, but I am familiar with his work, and I cite it in
my book.
I will say, in Texas, we have had issues with forensic
science, and our legislature has chosen to create a State Texas
Forensic Science Commission. It is independent of law
enforcement, and this commission now oversees all forensic labs
in the State, which have to be accredited. Our lab is
accredited to international standards, fully, with the
exception of crime scene, and I think what we have seen in
Texas is that independence, in all facets of forensic science,
is a goal that is a valuable one.
Mr. Gowdy. The gentlelady's time is expired. The chair
would now recognize Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman. Mr. Gamette, let me
begin with you, if I can. The opioid epidemic is having a
devastating impact all over the United States, including in my
district, which is Cincinnati and the surrounding area. How is
the opioid crisis affecting the forensic science community, and
what, if anything, should we, in Congress here, do about that?
Mr. Gamette. Thank you so much for the question. The
Federal Government's actions in this area have been mainly
focused on prevention, interdiction, and therapy. Forensic
science has not been considered very heavily in this arena yet.
Now, it is a workload issue for the laboratories. I mentioned,
in my testimony, about how much the workload has increased for
the medical examiners, for the toxicologists that are doing the
blood samples, also for the drug chemists that are working in
our laboratories.
Now, it is an issue of accreditation for medical examiners.
The more cases they work, the more autopsies they work, the
more at risk they put their accreditation status, because they
can only work so many per year. The instrumentation needs of
this country and the validation needs are astonishing, and we
could definitely use the support in the laboratories.
Now, the OFS could raise the level of visibility of this
issue. It was only recently that the Department of Justice
started to talk about the opioid crisis and how it might impact
forensic science and that Office of Forensic Science could
start that discussion earlier with other emerging issues,
because we are in the opioid crisis now. It will not be this
crisis next time. It will be something else that this office
can be forward-thinking and forward-looking on.
Mr. Chabot. Thank you very much. Professor Thompson, let me
turn to you next, if I can. What are the estimates of how many
individuals have been falsely imprisoned because of botched
forensic evidence, and what is the average turnaround time to
exonerate someone unfairly imprisoned?
Ms. Thompson. Those are good questions, and I looked a
little bit at that issue before I came. In my book, I take
information from the Innocence Project, documenting over 100
people who have been exonerated by means of DNA evidence. Now,
that is just one group. There are others. In Houston, just in
the last couple of years, there have been a couple of hundred
people exonerated of felony drug charges who were convicted
before lab tests were even done. Now, those are not forensic
errors, but they point at some of the issues. They relate to
forensic science, if you will.
But with regard to errors, we know of over 100 that were
exonerated through DNA. There are clearly others, I mean, and
law professors uniformly will talk about how these cases that
we discover are, we believe, the tip of the iceberg.
Mr. Chabot. Okay, thank you very much. And then my next
question could be my final question for anybody or multiple
people who may want to take it on. I mentioned my district is
Cincinnati, and we had a murder case about 20 years ago, and
the last name was Culberson. And the victim was a young lady,
22 years old. Her name was Carrie. Her mom's name was Debra. We
got to know her very well as a result of this case.
Carrie's boyfriend was ultimately convicted, denied it, and
is serving a life sentence, but they never found her body, and
there were all kinds of speculation as to what happened. But
they never recovered anything. And we worked with the mom and
got to know her, as I say, and it was a very sad case.
And one of the things we found, there is an awful lot of
runaway kids that may be from Ohio, and they end up in
California, or it doesn't necessarily have to be kids, but
anybody could be abducted. But the families don't know,
ultimately, what ever happened to them. And because of the
system, and this is some years ago, we do not necessarily know.
I mean, they might find a shin bone in a field in Oregon, or
they might find this or that, or they might be sitting, waiting
to be examined in somebody's table in the back room somewhere.
We heard all kinds of horror stories about how difficult it
is to figure out who they are and match them up with families
that are seeking their loved ones. And my question is this:
what advances, what progress are we making in identifying human
remains and making the families that are trying to find their
loved ones aware of it? It looks like, Dr. Weedn, you are the
man.
Dr. Weedn. Yes, there is a lot I could say. But for
shortness, I will point out the National Missing and
Unidentified Person System. This is called NamUs. It is an
entity, an operational program within the Department of Justice
and, more specifically, NIJ. Actually, NIJ has sometimes tried
to cut it out because it is not a research program, which is
their mission. I think an OFS would provide a home for it.
But real quickly, NamUs has a missing persons piece and an
unidentified persons piece. This is law enforcement. This is
coroners. And that is a software system that allows them to get
together across the country. It could be particularly extended
to, say, Mexico and Canada, so we can get some people coming
across those borders. Thank you.
Mr. Chabot. Thank you very much. Thank you.
Mr. Gowdy. The gentleman yields back. I would recognize
myself for questioning. And I do not want to get all Madisonian
on anyone, but as I was listening to you all talk, having been
in both State and Federal justice systems, if you were to ask
me what the preeminent functions of government were in the
State of South Carolina, I would tell you, ``public safety and
education.'' But it would not dawn on me to expect other States
to subsidize South Carolina's State criminal justice system.
That should be a priority in South Carolina, just like it
should be with children's advocacy centers and domestic
violence shelters. Those are almost indigenously State crimes.
So, I do understand why there is a look towards Washington,
but most of the crimes that I have heard discussed this morning
are either uniquely State, or there would be concurrent
jurisdiction in all drug cases, State and Federal. I would like
to see some of the pressure brought to bear, and I am sure you
all are, in your own jurisdictions. It is one of the reasons we
have government, is public safety.
So, let me ask you this, Dr. Baldwin. Most prosecutors are
not good with math or science, which is why we go to law
school. So, help me understand: is the quarrel with the
underlying science, or is the quarrel with the manner in which
that science is cross-examined or used? In other words, have
you just discounted bite-mark science or tire-tread science, or
is the cross-examination just not effective and the manner in
which we use those scientific tools suspect?
Dr. Baldwin. I believe that there needs to be an
understanding of the value of a particular examination and the
field that you are looking at, whether it is bite marks or it
is tire treads; the use for the evidence depends on the case
that you are looking at it for, and so, how relevant is it to
the question that is trying to be answered? And so, one attempt
to that is to understand the statistics for all applications of
a particular science, and so we question the overall error rate
for a field. That might be a misguided question to say whether
it is science or whether it has value in the case.
And so, I think that it is important to provide the best
tools, so that the person who is doing an examination, first of
all, is answering questions that are relevant to the case at
hand and, also, that we understand the value of it to answering
the question and how often they can be wrong, so we know how
strong their argument would be.
Mr. Gowdy. But part of what you just described is a fact
witness, and part of what you just described is an expert
witness, and experts get to express opinions.
Dr. Baldwin. Yes.
Mr. Gowdy. Fact witnesses do not. So, if it is an accepted
area that has scientific value, and it has been, whatever the
Daubert test is now; I have been gone for so long. Then that
person could give an expert opinion; whereas most law
enforcement officers cannot give an opinion on anything. So,
that is why I asked. But let me move on to this, and I will
immunize you if I need to, to ask you this question. But do you
know what marijuana smells like?
Dr. Baldwin. I certainly know from walking through crime
labs with a bale.
Mr. Gowdy. Let me ask Mr. Gamette. He is a little younger.
And I will offer you immunity, too, if you need it to answer
the question. Do you know what marijuana smells like?
Mr. Gamette. Chairman, we have marijuana come into the
laboratory every day. Bales of marijuana sometimes come into
the laboratory every day, and I have definitely smelled the
smell of marijuana.
Mr. Gowdy. Right, we will go with that explanation. Let me
ask you this. Is there a requirement that you call an expert
witness to test marijuana to see that it is marijuana? Can you
prove it with circumstantial evidence?
Mr. Gamette. Mr. Chairman, if our scientists have marijuana
submitted into the laboratory, we will run scientific tests.
Mr. Gowdy. I know you will, but trust me as a prosecutor,
there is no requirement. It goes to the weight, and it goes to
how juries will view it, but there is no requirement that you
prove that it is marijuana. I mean, there is a requirement that
the jury conclude it, but you do not have to conduct a test. In
a perfect world, of course, every prosecutor wants every stalk
of the plant tested. But it is not a requirement once you get
to court.
Dr. Weedn, you and the former U.S. attorney of Texas had a
conversation about reasonable degree of scientific certainty.
There is another phrase that you hear from time to time in
criminal court, which is reasonable doubt. In fact, in some
jury instructions, you hear it almost every other sentence.
There can be no definition for reasonable doubt in Federal
court. So, that is a phrase that juries hear, and no judge ever
explains what it means. So, why not be able to use the phrase
reasonable degree of scientific certainty, even though it does
not have a great explanation or great definition?
Dr. Weedn. Imagine what the role of the expert is on the
stand when that question is asked. It essentially asks that
expert, ``Well, what is the community consensus?'' And
sometimes, you really do not know that on very specific issues.
If you say, ``No,'' then your whole testimony can be thrown
out, even though you really do not know what the community
response is. It is a very unfair question to the expert.
Mr. Gowdy. Well, proving reasonable doubt is pretty tough,
too, particularly when the jury is never given an explanation
of what it means. And some of that, it strikes me, can be done
on cross-examination. I mean, we have talked about what good
labs would look like, and if they were all accredited, you
could do all of that. You are still going to get cross-
examined.
Dr. Weedn. I think I would prefer to be asked the question,
``What is in the literature? What do the colleagues that I know
ask? What is the basis for my testimony in this way or that?''
Mr. Gowdy. So, to treat you like we would an expert in a
civil case? Because those are the kinds of questions we would
ask you. We would not ask you to a reasonable degree of
scientific certainty in a civil case.
Dr. Weedn. In a civil case, it comes up particularly in the
medical context.
Mr. Gowdy. Right.
Dr. Weedn. Where it is asked reasonable medical certainty,
and that is used to establish an objective standard of care.
So, there is a reason for its use in that. It is really
different than in the criminal context.
Mr. Gowdy. I am with you. We will finish this conversation
later. And the other thing I want us to get to at some point, I
went through a long list, forensic pathologists, which are near
and dear to homicide prosecutors' hearts, firearms,
fingerprint, toxicology, drug analysis, pharmacology. There is
a whole body of experts out there called mitigation experts,
and I, for the life of me, do not know how you test and probe
experts in capital cases whose testimony consists of, ``this
person had a really bad childhood,'' and not linking it to the
crime. So, to my friends on the defense side, I understand
wanting good science on the prosecutorial side. It would be
nice to have a better understanding of what a mitigation expert
is on the defense side as well.
With that, and with votes pending, I can tell you, on both
sides of the aisle, this is really important. You all are
experts, and I will speak for myself. I am not. Ms. Jackson Lee
may be; others may be. I am not. So, we benefit from it. And
more than anything else, we benefit from a justice system that
is not only respected, but worthy of respect.
Ms. Jackson Lee. Mr. Chairman?
Mr. Gowdy. Yes, ma'am?
Ms. Jackson Lee. You are so kind with your generosity. May
I get one question for Ms. Thompson on the record that I did
not, that was the genesis of the lab in Houston, which I think
all of us faced, and you, as a prosecutor, faced, and that is
the impact of rape kits stagnating in law enforcement offices
across the nation, frankly? And that was one of our major
issues in Houston. What was the impact, and what have you seen
the difference? If the chairman would yield for her to answer
that question, I would really appreciate it.
Mr. Gowdy. Certainly.
Ms. Thompson. So, in Houston, when we took over, when we
created this board of directors for the lab, there were
somewhere between 6,600 and, I don't know, maybe eight or 9,000
sexual assault kits that had not been tested. The Texas
legislature has now required that all sexual assault kits have
to be preserved forever, as far as I know, and that they must
all be tested. So, that created a legal obligation for us to
test them all. They had not all been requested to be tested,
but now they all had to be, by law.
And the city of Houston came up with money that was
supported by Federal grant money, as well, to get all of those
rape kits tested, and they have been tested by outside, private
labs, and there were quite a few arrests that were made as a
result of that. So, there was definitely justice delayed, and I
believe that there were some additional rapes that occurred in
the interim, during that delay. So, it is definitely a concern,
like I say. We are very proud that we do not have a sexual
assault kit backlog of any kind, and we have a very aggressive
definition for backlog.
Ms. Jackson Lee. Mr. Chairman, I will just end by saying to
you, because you made a point. I do not think that we have a
disagreement, but in the instance of Houston, the Federal
grants were crucial to be a lifeline to get them out of the
abyss that they were in and to be able to mount the attack on
the backlog. And you can see that was a huge number just for
one jurisdiction.
So, I would offer to say that Federal funds can be helpful,
and I just listened to Mr. Gamette talk about small labs, and I
want to pursue that some other time about the smaller labs. But
it has been helpful to getting labs right-side-up, to be able
to ensure that the backlog is caught up, and that justice is
rendered. So, I thank you, and I thank the witness for her
statement.
Mr. Gowdy. Yes, ma'am. We do not have a disagreement at all
on that point. I guess my only lamentation was what it took the
Federal Government to reduce the backlog in a State that has
the economy and, frankly, the budget surplus of a State like
Texas.
Public safety is the preeminent function of government, and
we ought to fund that like it is the preeminent function of
government. And winning cases this day and age and exonerating
the innocent is the highest function of government. We ought to
fund it that way. So, you and I are in accord there. I just
wish it were done at the level at which the crime took place.
With that, I thank each of you, and members will have an
additional 3 days to submit questions or, otherwise, comments
for the record.
And with that, we are adjourned. Thank you very much for
your expertise.
[all]