FEDERAL OVERSIGHT AND STANDARDS FOR FORENSIC SCIENCE

At its best, the forensic sciences can be used to exclude the innocent from conviction of a crime or indict the actual perpetrator of a crime.  At its worst, invalid and unreliable forensics are the second greatest contributing factor to wrongful convictions.  As a consequence, not only are innocent people imprisoned, but the true perpetrators of the crime are allowed to continue to live freely in society.  Since 1992, 223 wrongfully convicted people have been exonerated using post-conviction DNA analysis. Unlike other less sensitive and discriminating forensic fields, DNA analysis has been subjected to the rigors of the scientific method and peer-review and the use of post-conviction DNA testing has illuminated the glaring and persistent deficiencies in other realms for forensic science.

In 2007, Congress convened the National Academy of Sciences' Committee on Identifying the Needs of the Forensic Sciences Community (NAS Committee) with the purpose of studying the forensic sciences in order to make recommendations to ensure that its use in criminal justice is more science-based, more reliable and ultimately more just.  Recent hearings before the committee indicated the need for an oversight body to standardize the science of forensic techniques, ensure their validity and reliability, and enforce the resulting scientific parameters on the application of these techniques in our court system.  A singular source of standard-setting is essential as variable regulations and variable standards will lead to variable levels of justice.  If implemented, these recommendations will bring forensic sciences more closely in line with other scientific disciplines and thereby ensure that forensic sciences can be applied safely, consistently, and justly. An additional and important result of the implementation of these recommendations is that the research recommended by the NAS report can be an important economic stimulus for U.S. research work in this area, which can inject government funds back into the U.S. economy.

Summary of the Problem: As demonstrated by many of the nation's 223 wrongful convictions proven by post-conviction DNA testing, there are serious questions about the reliability and validity of many of the non-DNA forensic analyses used by our police and legal system to determine questions of innocence or guilt.  The NAS Committee has closely reviewed these concerns, and is expected to recommend that significant research be conducted-and standards established-to clarify the proper uses of such analyses in our legal system.

Based on what the NAS Committee reviewed and recommends, Congress should authorize and fund the creation of a federal government entity or capacity, located within a science-focused agency, to accomplish the following:

• conduct serious and comprehensive research into the validity and reliability of forensic techniques;
• establish standards for their use in the courts; and
• create a system to enforce standards and secure the integrity of forensic evidence through quality assurance, accreditation, training, and the tracking of its use in the courts.

The paths to implementing these recommendations can include Congressional, Executive, or Agency routes, or a combination thereof.  To ensure that the NAS recommendations become reality, appropriate funding will be essential.

Proposed Solutions:

Executive:  Immediate issue of executive order after the release of the NAS report (short term). The President may issue an executive order to create a federal entity or capacity to: (1) conduct research on the validity and reliability of extant forensic techniques, (2) asses the reliability and validity of forensic techniques and establish standards for their use in the courts, and (3) create a system to enforce standards and secure the integrity of the final forensic product through quality assurance, accreditation, training, and the tracking of its use in the courts.

Legislative Changes:  Immediate drafting and filing of legislation after the release of the NAS report (short term). Create a federal entity or capacity to: (1) conduct research on the validity and reliability of extant forensic techniques, (2) asses the reliability and validity of forensic techniques and establish standards for their use in the courts, and (3) create a system to enforce standards and secure the integrity of the final forensic product through quality assurance, accreditation, training, and the tracking of its use in the courts.

• Amend 42 U.S.C. - New Chapter

This section was proposed because a number of pieces of criminal justice legislation have been codified under Title 42.

Legislative Appropriations (Solutions w/ Funding Requests): Appropriate funding for a federal entity or capacity to: (1) conduct research on the validity and reliability of extant forensic techniques, (2) asses the reliability and validity of forensic techniques and establish standards for their use in the courts, and (3) create a system to enforce standards and secure the integrity of the final forensic product through quality assurance, accreditation, training, and the tracking of its use in the courts.

Jurisdiction:

The following are options suggested for the examination of these issues:

Executive Branch: The President

Legislative Branch: Senate Commerce, Science and Transportation Committee; House Science and Technology Committee; Senate Judiciary Committee; House Judiciary Committee; House Appropriations Committee; and Senate Appropriations Committee

Background:

Executive/Legislative Branches: As directed by Congress and President Bush under the Justice for All Act of 2004 (JFAA), the National Academy of Sciences (NAS) has undertaken a long-awaited study to examine thoroughly and comprehensively the fundamental underpinnings of forensic scientific evidence and its applications in our criminal justice system.  The effort to fund this study was championed by Senator Barbara Mikulski and strongly supported by the Senate Commerce, Justice and Science Appropriations Subcommittee, which resulted in the $1.5 million appropriation.

With funding in hand, a blue-ribbon NAS panel, comprising scientists, academics, a retired federal judge, and other notables, in 2007 convened to study forensic sciences.  This Committee on Identifying the Needs of the Forensic Sciences Community has met seven times since, and a comprehensive report by the body is imminent-potentially arriving as soon as December.  Based on the testimony provided, the Innocence Project expects the report to call for sweeping changes in the forensic sciences.  These recommended changes will not, however, improve the quality of justice in America without a significant and focused legislative effort.

In the JFAA, Congress called on the NAS Committee to:

(1) assess the present and future resource needs of the forensic science community, to include state and local crime labs, medical examiners, and coroners;

(2) make recommendations for maximizing the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;

(3) identify potential scientific advances that may assist law enforcement in using forensic technologies and techniques to protect the public;

(4) make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners available to work in public crime laboratories;

(5) disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;

(6) examine the role of the forensic community in the homeland security mission;

(7) examine the interoperability of Automated Fingerprint Information Systems; and

(8) examine additional issues pertaining to forensic science as determined by the Committee.

The recommendations of the highly respected panel could dramatically shake the core of forensic sciences as applied in our criminal justice system.  Invalid or improper forensic science (analysis and/or testimony) has been identified as a primary contributing factor to the 223 wrongful convictions proven by post-conviction DNA testing.  The NAS Committee has been exploring the root weaknesses of many forensic sciences, voicing healthy skepticism toward the status quo, and has been considering when and how these forensic sciences can be safely and reliably applied in courts of law.

Discussion among Committee members at its public meetings indicates that the forthcoming report should stress the shortcomings present in numerous forensic sciences-other than DNA-that make their way into courtrooms.  In specific, the report likely will underscore that because many forensic assays developed experientially, without objective testing to confirm or disprove their reliability and reproducibility, the absence of formal scientific vetting places their probative value in doubt.

Indeed, questions likely will be raised about whether it is ever appropriate for certain forensic sciences to be relied upon by prosecutors in criminal cases.  Moreover, the committee will recommend for other assays to undergo formal and comprehensive studies that will, for the first time, clearly delineate their limits.  The body also might call for the formation of national institutes to study forensic sciences in a rigorous and systematic fashion, and otherwise oversee their application in courts.

Recent hearings before the committee indicated the need for an oversight body to standardize the science of forensic techniques, ensure their validity and reliability, and enforce the resulting scientific parameters on the application of these techniques in our court system.  These recommendations will, if implemented, bring forensic sciences more closely in line with other scientific disciplines and thereby ensure that forensic sciences can be applied safely, consistently, and justly. An additional and important result of the implementation of these recommendations is that the research recommended by the NAS report can be an important economic stimulus for U.S. research work in this area, which can pump money back into the U.S. economy.

Numerous members of Congress have taken leadership on issues closely related to the changes proposed here.  For example, Sen. Patrick Leahy (D-VT) was an early champion of the Innocence Protection Act (IPA) for several years before its passage.  The IPA was folded into a victims' rights bill, the Justice For All Act (JFAA), a product of bi-cameral compromise.  Sen. Leahy was joined in support of the bill by Senate Judiciary Chairman Orrin Hatch (R-UT), Sen. Arlen Specter (R-PA), then-House Judiciary Chairman F. James Sensenbrenner (R-WI), and Rep. William Delahunt (D-MA).  The bill was unanimously approved by the House Judiciary and then passed on the House floor in a 393-14 vote on October 6, 2004.  Three days later, the bill passed the Senate by a voice vote.  President Bush signed this bill into law on October 30, 2004.

A clause within JFAA authorizing the NAS study was incorporated at the urging of the Senate Commerce, Justice and Science Subcommittee. Subsequently, Sen. Barbara Mikulski championed efforts to secure the $1.5 million funding authorized to conduct the NAS study.  Once that money was in hand, by 2006 the study was underway.

Potential Allies, Potential Opposition, and Public Opinion:

Potential Allies:

• Strong interest from members of the Senate Appropriations Commerce, Justice and Science Subcommittee (the initiators of the NAS request)
• Members of the Senate Judiciary Committee, including Sen. Leahy (D-VT)
• Members of the House Judiciary Committee, including Rep. John Conyers (D-MI)
• Potential allies on the House Science and Technology Committee and the Senate Commerce, Science and Transportation Committee
• Other partners still developing
• The Constitution Project
• Council for Court Excellence

Potential Opposition: Given that the NAS Report findings and recommendations are likely to point out the weaknesses of many forensic assays, the Consortium of Forensic Science Organizations (which represents the American Society of Crime Lab Directors, the National Association of Medical Examiners, the International Association for Identification, and the American Academy of Forensic Sciences), may well be opposed to certain changes called for in the report or subsequent legislation.

It is important to note that whatever federal entity is entrusted with authority over the government efforts that flow from the NAS Report recommendations must be an agency which has as its primary mission scientific research and the setting of standards.

Public Opinion: Public attention to and concern about the problem of wrongful convictions has been growing in recent years as the number of exonerated individuals continues to grow.  Additionally, numerous high profile crime lab scandals-in Detroit, Houston, and many other cities and states-have begun to direct attention to some of the specific weaknesses in the forensic sciences.  That said, public opinion on the idea of a federal standard-setting entity is not known, and would likely be open to significant influence from potential allies (or potential opposition). 

Experts:

• Craig Cooley, MS, JD, Staff Attorney, Innocence Project
• Itiel Dror, PHD, Senior Lecturer, Cognitive Neuroscience, University of Southampton
• Brandon Garrett, JD, Associate Professor, Law, University of Virginia
• Paul C. Giannelli, MSFS, JD, Professor, Law, Case Western Reserve University
• Jonathan Koehler, PHD, Professor, Behavioral Decision Making, University of Texas at Austin.
• Roger Koppl, PHD, Professor, Economics and Director of the Institute for Forensic Science Administration, Fairleigh Dickinson University
• Dan Krane, PHD, Professor, Biological Sciences, Wright State University
• Peter Neufeld, JD, Co-Director, Innocence Project
• D. Michael Risinger, JD, Professor, Law, Seton Hall University
• Michael Saks, MA, MSL, PHD, Professor, Law & Psychology, Arizona State University
• William C. Thompson, JD, PHD, Professor and Chair, Social Ecology, University of California, Irvine
• Co-Chairs, NAS Committee on "Identifying the Needs of the Forensic Sciences Community"
  • Judge Harry T. Edwards, JD, U.S. Court of Appeals for the District of Columbia Circuit
  • Constantine Gatsonis, PHD, Director of the Center for Statistical Sciences, Brown University

For Further Information:

Craig M. Cooley and Gabriel S. Oberfield, Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem, Tulsa Law Review, Vol. 43:285 2007

Itiel Dror, Biased Brains, Police Review, June 6, 2008, and other related publications available at http://users.ecs.soton.ac.uk/id/biometrics.html.

Brandon L. Garrett, Judging Innocence, Columbia Law Review, January 2008

Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, Supplement 1, 2005, Vol. 95, No. S1

Michael Saks & Jonathan Koehler, The Coming Paradigm Shift in Forensic Identification Science, Science, Aug. 5, 2005, 892

William A. Tobin & William C. Thompson, Evaluating and Challenging Forensic Identification Evidence, National Association of Criminal Defense Lawyers, 30-JUL Champion 12 , available at http://www.nacdl.org/public.nsf/698c98dd101a846085256eb400500c01/8a20d040b54b23c9852571c500787130?OpenDocument (last visited Oct. 31, 2008).