[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
STRENGTHENING FORENSIC SCIENCE
IN THE UNITED STATES: THE ROLE
OF THE NATIONAL INSTITUTE OF
STANDARDS AND TECHNOLOGY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION
COMMITTEE ON SCIENCE AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 10, 2009
__________
Serial No. 111-8
__________
Printed for the use of the Committee on Science and Technology
Available via the World Wide Web: http://www.science.house.gov
______
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COMMITTEE ON SCIENCE AND TECHNOLOGY
HON. BART GORDON, Tennessee, Chair
JERRY F. COSTELLO, Illinois RALPH M. HALL, Texas
EDDIE BERNICE JOHNSON, Texas F. JAMES SENSENBRENNER JR.,
LYNN C. WOOLSEY, California Wisconsin
DAVID WU, Oregon LAMAR S. SMITH, Texas
BRIAN BAIRD, Washington DANA ROHRABACHER, California
BRAD MILLER, North Carolina ROSCOE G. BARTLETT, Maryland
DANIEL LIPINSKI, Illinois VERNON J. EHLERS, Michigan
GABRIELLE GIFFORDS, Arizona FRANK D. LUCAS, Oklahoma
DONNA F. EDWARDS, Maryland JUDY BIGGERT, Illinois
MARCIA L. FUDGE, Ohio W. TODD AKIN, Missouri
BEN R. LUJAN, New Mexico RANDY NEUGEBAUER, Texas
PAUL D. TONKO, New York BOB INGLIS, South Carolina
PARKER GRIFFITH, Alabama MICHAEL T. MCCAUL, Texas
STEVEN R. ROTHMAN, New Jersey MARIO DIAZ-BALART, Florida
JIM MATHESON, Utah BRIAN P. BILBRAY, California
LINCOLN DAVIS, Tennessee ADRIAN SMITH, Nebraska
BEN CHANDLER, Kentucky PAUL C. BROUN, Georgia
RUSS CARNAHAN, Missouri PETE OLSON, Texas
BARON P. HILL, Indiana
HARRY E. MITCHELL, Arizona
CHARLES A. WILSON, Ohio
KATHLEEN DAHLKEMPER, Pennsylvania
ALAN GRAYSON, Florida
SUZANNE M. KOSMAS, Florida
GARY C. PETERS, Michigan
VACANCY
------
Subcommittee on Technology and Innovation
HON. DAVID WU, Oregon, Chair
DONNA F. EDWARDS, Maryland ADRIAN SMITH, Nebraska
BEN R. LUJAN, New Mexico JUDY BIGGERT, Illinois
PAUL D. TONKO, New York W. TODD AKIN, Missouri
DANIEL LIPINSKI, Illinois PAUL C. BROUN, Georgia
HARRY E. MITCHELL, Arizona
GARY C. PETERS, Michigan
BART GORDON, Tennessee RALPH M. HALL, Texas
MIKE QUEAR Subcommittee Staff Director
MEGHAN HOUSEWRIGHT Democratic Professional Staff Member
TRAVIS HITE Democratic Professional Staff Member
PIPER LARGENT Republican Professional Staff Member
VICTORIA JOHNSTON Research Assistant
C O N T E N T S
March 10, 2009
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative David Wu, Chair, Subcommittee on
Technology and Innovation, Committee on Science and Technology,
U.S. House of Representatives.................................. 5
Written Statement............................................ 5
Statement by Representative Adrian Smith, Ranking Minority
Member, Subcommittee on Technology and Innovation, Committee on
Science and Technology, U.S. House of Representatives.......... 6
Written Statement............................................ 6
Prepared Statement by Representative Harry E. Mitchell, Member,
Subcommittee on Technology and Innovation, Committee on Science
and Technology, U.S. House of Representatives.................. 7
Prepared Statement by Representative Paul C. Broun, Member,
Subcommittee on Technology and Innovation, Committee on Science
and Technology, U.S. House of Representatives.................. 7
Witnesses:
Mr. Peter M. Marone, Director, Virginia Department of Forensic
Science
Oral Statement............................................... 8
Written Statement............................................ 10
Biography.................................................... 14
Ms. Carol E. Henderson, Director, National Clearinghouse for
Science, Technology and the Law; Professor of Law, Stetson
University College of Law; Past President, The American Academy
of Forensic Sciences
Oral Statement............................................... 14
Written Statement............................................ 17
Biography.................................................... 19
Mr. John W. Hicks, Director, Office of Forensic Services, New
York State Division of Criminal Justice Services (Ret.); Former
Director, FBI Laboratory
Oral Statement............................................... 20
Written Statement............................................ 22
Biography.................................................... 23
Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant,
Coastal Regional Medical Examiner, Georgia Bureau of
Investigation
Oral Statement............................................... 24
Written Statement............................................ 26
Biography.................................................... 31
Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence
Project
Oral Statement............................................... 32
Written Statement............................................ 34
Biography.................................................... 53
Discussion....................................................... 54
Appendix 1: Answers to Post-Hearing Questions
Mr. Peter M. Marone, Director, Virginia Department of Forensic
Science........................................................ 82
Ms. Carol E. Henderson, Director, National Clearinghouse for
Science, Technology and the Law; Professor of Law, Stetson
University College of Law; Past President, The American Academy
of Forensic Sciences........................................... 85
Mr. John W. Hicks, Director, Office of Forensic Services, New
York State Division of Criminal Justice Services (Ret.); Former
Director, FBI Laboratory....................................... 87
Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant,
Coastal Regional Medical Examiner, Georgia Bureau of
Investigation.................................................. 89
Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence
Project........................................................ 96
Appendix 2: Additional Material for the Record
Letter to Chair David Wu and Subcommittee Members from Joseph I.
Cassilly, President, National District Attorneys Association,
dated March 9, 2009............................................ 128
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: THE ROLE OF THE
NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY
----------
TUESDAY, MARCH 10, 2009
House of Representatives,
Subcommittee on Technology and Innovation,
Committee on Science and Technology,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. David Wu
[Chair of the Subcommittee] presiding.
hearing charter
SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION
COMMITTEE ON SCIENCE AND TECHNOLOGY
U.S. HOUSE OF REPRESENTATIVES
Strengthening Forensic Science
in the United States: The Role
of the National Institute of
Standards and Technology
tuesday, march 10, 2009
10:00 a.m.-12:00 p.m.
2318 rayburn house office building
I. Purpose
On Tuesday, March 10, 2009, the Subcommittee on Technology and
Innovation will convene a hearing to review the scientific and
technical issues raised by the recently released National Academies
report Strengthening Forensic Science in the United States: A Path
Forward. The hearing will discuss issues related to the accuracy,
standards, reliability, and validity of forensic science, as well as
how the expertise of the National Institute of Standards and Technology
(NIST) in forensics related research, developing standards and
certified test methodologies, and performing laboratory accreditation
may be leveraged to implement some of the recommendations in the
report.
II. Witnesses
Mr. Pete Marone is the Director of Technical Services at the Virginia
Department of Forensic Science.
Ms. Carol Henderson is the Director of the National Clearing House for
Science, Technology and the Law; a Professor of Law at Stetson
University College of Law; and the Past President at the American
Academy of Forensic Sciences.
Mr. John Hicks is the retired Director of the Office of Forensic
Services, New York State Division of Criminal Justice Services; and the
former Director at the FBI Laboratory.
Mr. Peter J. Neufeld is the Co-Founder and Co-Director of the Innocence
Project.
Dr. J.C. Upshaw Downs is the Coastal Regional Medical Examiner at the
Georgia Bureau of Investigation.
III. Issues and Concerns
Prompted by concerns over the reliability and variability of
forensic evidence, the National Academy of Sciences Committee on
Identifying the Needs of the Forensic Science Community recently
completed a study on the status of the Nation's crime labs,
Strengthening Forensic Science in the United States: A Path Forward.
The committee found that many of the techniques and technologies used
in forensic science lack rigorous scientific discipline. In addition,
the committee reported a lack of standard accreditation processes for
individual labs and the technicians who collect and process evidence.
The committee recommended that a new agency, separate from the
legal and law enforcement communities, be created to provide oversight
to correct these inconsistencies which impact the accuracy,
reliability, and validity of forensic evidence. Many of the functions
envisioned by the report committee for this new agency already are, or
could be, performed at NIST. These activities include standards
setting, the creation of validated test methodologies, and the
development of standard practices. Indeed, the report recommends this
new agency specifically work with NIST in several areas.
The report committee notes that on two fronts the forensic
disciplines lack consistent science. The first concern is that
different forensic disciplines vary in the degree to which they are
based on a well-tested, rigorous scientific methodology. For instance,
whereas the methodology for fingerprint identification is
scientifically proven, the analysis of other forensic evidence, like
bite-mark comparisons, does not follow a prescribed and scientifically
verified methodology. The second issue with consistency is the degree
to which some disciplines rely on inexact interpretation to reach their
findings and report their conclusions. This is evident in the practice
of identifying partial or smudged fingerprints, when practitioners rely
on judgment, instead of a reliable scientific methodology, which can
introduce human error and bias. Furthermore, there is no consistent
scale or nomenclature to report these types of findings. For example,
the exact same finding could be reported as ``a match'' in one
jurisdiction or ``consistent with'' in another jurisdiction.
IV. Background
DNA evidence has been widely used in the legal system for many
years. DNA's accepted use in this capacity stems from the fact that it
has been rigorously shown to identify, with a high degree of certainty,
a connection between evidence and an individual of interest. This
certainty can be traced back to efforts of NIST on the development of
both the test methodologies for DNA analysis and the standard reference
materials that can be used for laboratory as well as test
certification. There are other common techniques used by forensic
scientists such as fingerprint analysis, ballistic tests, hair
matching, pattern recognition, and paint matching that could benefit
from a robust research and development program. Many of these
techniques based on observation, experience, and reasoning lack
validation on their accuracy and reliability. Because of these
shortcomings, many of the forensic tests can have high error rates. To
resolve these issues, additional research and experimental testing
detailing the reliability of the methods is required.
Lack of Federal Standards
The forensic science community includes crime scene investigators,
State and local crime laboratories, medical examiners, private forensic
laboratories, and law enforcement identification units. They may use
registries of information, databases for matching, or reference
materials for comparisons of evidence. The registries need a common
interface to aid in training and accessibility for all users in the
community. The databases need to be inter-operable to allow for
communication between different sources. In addition, reference
materials must be standardized so that test equipment can all be
calibrated to an accurate and reliable level. Currently there are no
clear and consistent standards for the forensic community to apply the
tools available to them; instead there are many different methodologies
with no single certification method for practitioners. Without clear
and measurable standards for all forensic science disciplines, not just
DNA analysis, it is impossible to assess whether one organization is
properly conducting analyses. In addition, it is difficult to ascertain
the validity of a specific forensic science methodology. The report
recommends that standards need to be set for all facets of forensic
science and a certification program needs to be developed for both the
practitioners and laboratories.
Chair Wu. Good morning. The hearing will now come to order.
I want to welcome everyone to this morning's hearing. The
spur for this hearing was the release of a recent National
Academy of Sciences report, Strengthening Forensic Science in
the United States: A Path Forward. This report makes a number
of recommendations on how to improve forensic science in the
United States and many of the recommendations ask for research
that supports forensic science and for standards and
accreditation to ensure the validity, accuracy and reliability
of forensic science testing.
The purpose of today's hearing is to determine whether we
can build on the resources and expertise at the National
Institute of Standards and Technology (NIST) to implement some
of the report's recommendations. The report suggests creating
an entirely new department to govern forensics issues and calls
for this new agency to work with NIST. Given our current
economic climate and other constraints, I would first like to
explore how we can build upon and improve existing federal
capabilities rather than trying to create a whole new
governmental structure. We have all learned from the experience
of creating the Department of Homeland Security that
legislatively providing for a new agency is far easier and far
different than from executing on the actual implementation of
the new agency.
I fully support the goal of the report to improve forensic
science in the United States. The popular television show,
``Crime Scene Investigation,'' or CSI, has raised public
awareness and expectation of the role of forensic science in
helping us to solve crimes. However, the show depicts the
practice of forensics in a manner that is far different from
the current state of technology or our methodology. I hope that
this hearing is a first step in bringing reality into better
alignment with the high expectations created by our
entertainment industry.
We have an experienced and distinguished panel of witnesses
today. I want to thank each of you for taking the time to
appear before the Subcommittee and I look forward to hearing
your views and advice on how to move forward from here. We all
want to support law enforcement and judicial process by
providing the best forensic science base available.
Now I would like to recognize the Ranking Member of the
Subcommittee, Representative Smith, for his opening statement.
[The prepared statement of Chair Wu follows:]
Prepared Statement of Chair David Wu
Good morning. I want to welcome everyone to this morning's hearing.
The spur for this hearing was the release of a recent National Academy
of Sciences report: ``Strengthening Forensic Science in the United
States: A Path Forward.'' This report makes a number of recommendations
on how to improve forensic science in the United States. Many of the
recommendations ask for research that supports forensic science and for
standards and accreditation to ensure the validity, accuracy, and
reliability of forensic science testing.
The purpose of today's hearing is to determine whether we can build
on the resources and expertise at the National Institute of Standards
and Technology to implement some of the report's recommendations. The
report suggests creating an entirely new department to govern forensics
issues and calls for this new department to work with NIST. Given the
current economic climate I would like to explore how we can build upon
and improve existing federal capabilities rather than trying to create
a whole new government structure. We have all learned from the creation
of the Department of Homeland Security that legislating a new agency is
far easier than executing on the implementation of the new agency.
I fully support the goal of the report to improve forensic science
in the United States. The popular television show ``Crime Scene
Investigation,'' better known as CSI, has raised public awareness and
expectation of the role of forensic science in solving crimes; however,
the show depicts the practice of forensics in a manner that is far
different from the current state of technology. I hope this hearing is
a first step in moving from entertainment to reality.
We have an experienced and distinguished panel of witnesses today
who all have important and busy jobs. I want to thank them for taking
the time to appear before the Subcommittee today. I look forward to
hearing their views and advice on how to move the process forward. We
all want to support our law enforcement and judicial processes by
providing them with the best forensic science base possible.
Mr. Smith. Mr. Chair, thank you for holding this hearing
today on the very important issue of forensic science. Many, if
not most, of the issues we undertake in this subcommittee have
direct implications well beyond our scientific and
technological enterprise. Forensic science is no different but
it is certainly of particular unique importance in that it is a
key factor in the fundamental functioning of our justice
system. This importance has only increased in recent years
through the advancement of new technologies that have enabled
forensics to contribute a growing amount of information to law
enforcement investigations as well as courtroom proceedings.
These advances undoubtedly improved our ability to not only
identify and convict the guilty but also, very importantly,
exclude the innocent. However, as the National Academy of
Sciences' [NAS] report on strengthening forensic science
demonstrates, continued improvement is necessary to maximize
the quality of and our corresponding confidence in forensic
evidence that is used in the courtroom. The NAS report's core
finding, that many forensic disciplines are in need of more
rigorous scientific review to validate their accuracy and
reliability, is very serious and requires the full and
immediate attention of Congress, the justice system and
certainly the forensic science community.
But it is important to remember the absence of rigorous
scientific underpinning in many forensic disciplines does not
mean these methods are inaccurate or unreliable. Accordingly, I
think it is important to recognize the enormous value forensic
evidence provides to the justice system, even in the absence of
full scientific validation, and accordingly exercise caution to
ensure we are not overly dismissive of forensic evidence.
The immediate focus of this hearing today, however, is to
review the scientific and technical recommendations of the NAS
report and discuss how they can best be addressed, particularly
through the National Institute of Standards and Technology,
which has the programs and expertise to be a key driver of
improvements in forensic science.
I thank the witnesses for being here today, and I look
forward to a productive discussion.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Representative Adrian Smith
Mr. Chairman, thank you for holding this hearing today on the very
important issue of forensic science. Many if not most of the issues we
undertake in this subcommittee have direct implications well beyond our
scientific and technological enterprise. Forensic science is no
different, but it is of particularly unique importance in that it is a
key factor in the fundamental functioning of our justice system.
This importance has only increased in recent years through the
advancement of new technologies that have enabled forensics to
contribute a growing amount of information to law enforcement
investigations as well as courtroom proceedings. These advances have
undoubtedly improved our ability to not only identify and convict the
guilty, but also exclude the innocent.
However, as the National Academy of Sciences report on
strengthening forensic science demonstrates, continued improvement is
necessary to maximize the quality of--and our corresponding confidence
in--forensic evidence that is used the courtroom.
The NAS report's core finding--that many forensic disciplines are
in need of more rigorous scientific review to validate their accuracy
and reliability--is very serious, and requires the full and immediate
attention of Congress, the justice system, and the forensic science
community.
But it is important to remember the absence of rigorous scientific
underpinning in many forensic disciplines does not mean these methods
are inaccurate or unreliable; it simply means they are in need of
evaluation. Accordingly, I think it is important to recognize the
enormous value forensic evidence provides to the justice system even in
the absence of full scientific validation, and accordingly exercise
caution to ensure we are not overly dismissive of forensic evidence.
The immediate focus of this hearing today, however, is to review
the scientific and technical recommendations of the NAS report and
discuss how they can best be addressed, particularly through the
National Institute of Standards and Technology, which has the programs
and expertise to be a key driver of improvements in forensic science.
I thank the witnesses for being here, and I look forward to a
productive discussion.
Mr. Smith. One final item, Mr. Chair. I do have a letter
from the National District Attorneys' Association, and with
unanimous consent I ask that it be included in the record. [See
Appendix 2: Additional Material for the Record.]
Chair Wu. Without objection, so ordered.
Mr. Smith. Thank you, Mr. Chair.
Chair Wu. Thank you, Mr. Smith.
If there are other Members who wish to submit additional
opening statements, your statements will be included in the
record at this point.
[The prepared statement of Mr. Mitchell follows:]
Prepared Statement of Representative Harry E. Mitchell
Thank you, Mr. Chairman.
Today we will discuss issues related to the accuracy, standards,
reliability, and validity of forensic science and how the National
Institutes of Standards and Technology can play a role in developing
standards and certified test methodologies related to forensic science.
According to Strengthening Forensic Science in the United States: A
Path Forward, a study conducted by the National Academy of Sciences
Committee on Identifying the Needs of the Forensic Science Community,
many of the techniques and technologies utilized in forensic science
lack rigorous scientific discipline.
Furthermore, this study also found that individual labs and the
technicians who collect and process evidence do not utilize consistent
and standard accreditation methods.
I look forward to hearing more from our witnesses on how NIST can
play a role in the standardization of forensic science methodology.
I yield back.
[The prepared statement of Mr. Broun follows:]
Prepared Statement of Representative Paul C. Broun
Good Morning. I'd like to thank Chairman Wu and Ranking Member
Smith for hosting this important hearing. I'd also like to join them
and the rest of my colleagues in welcoming our esteemed guests. The
National Academy of Sciences recent report: ``Strengthening Forensic
Science in the United States: A Path Forward,'' set forth numerous
ideas to improve the forensic sciences including upgrading our systems
and organizational structures, better training, widespread adoption of
uniform and enforceable best practices, and mandatory certification and
accreditation programs. These are all reasonable and necessary
recommendations which would go a long way toward improving forensic
science in the United States and I applaud the members of the National
Academies for their diligence and hard work in assembling this report
as we look to improve the reliability and accuracy of forensic testing.
As a scientist, I value truth above all else. I believe a vital
component of our judicial system should be to provide a means of
forensic testing that is beyond reproach in its accuracy and is uniform
in its application. It is of a vital national interest that our
forensic science techniques and procedures be as close to perfect as
possible. It's a shame that forensic evidence has been misinterpreted
in that past and resulted in innocent people being jailed unjustly, or
conversely in the guilty being set free. So I stress that it is
absolutely vital that we continue to commit resources towards
furthering forensics with specific goals of one day reaching 100
percent accuracy and of broadening the applications for its use.
However, I must join with the Chairman in my skepticism of creating
an entirely new department to oversee this venture. Not only is it
rarely ever a good idea for the Federal Government to create a new
bureaucracy, as the Chairman has already stated, but in my view it is
unconstitutional to do so, as nowhere in the documents our Founding
Fathers penned do they afford Congress that power. Instead, I believe
that we should look to individual states to set uniform standards for
use within their borders, or expanding the resources available to NIST
and authorizing them to formulate and set new standards and to test
current and potential forensic science techniques which may be even
more beneficial to the pursuit of truth into the future. Any move to
federalize forensic science is a move to stifle scientific freedom and
in its place adopt more government control.
I look forward to hearing testimony from these many fine scientists
who have graciously come before us today and I hope they can help us
move towards our mutual goal of strengthening forensic science and its
applications in our criminal justice system.
Thank you again for allowing me the time to speak today Mr.
Chairman.
Chair Wu. It is my pleasure to introduce our panel of
witnesses. Mr. Pete Marone is the Director of Technical
Services at the Virginia Department of Forensic Science. Ms.
Carol Henderson is the Director of the National Clearinghouse
for Science, Technology and the Law. She is also a Professor of
Law at Stetson University College of Law and the Past President
of the American Academy of Forensic Sciences. Mr. John Hicks is
the retired Director of the Office of Forensic Services at the
New York State Division of Criminal Justice Services and the
former Director of the FBI Laboratory. Dr. Jamie Downs is the
Coastal Regional Medical Examiner at the Georgia Bureau of
Investigation. And our final witness is Mr. Peter Neufeld, who
is the Co-Founder and Co-Director of the Innocence Project.
Mr. Marone, if you would like to proceed, you will each
have five minutes for your spoken testimony and your written
testimony will be included in the record. When you complete
your testimony--all of you complete your testimony--we will
begin with questions and each Member will have five minutes to
question the panel. Mr. Marone, please proceed.
STATEMENT OF MR. PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT
OF FORENSIC SCIENCE
Mr. Marone. Thank you, Mr. Chair, Ranking Member Smith. It
is certainly a pleasure, and I appreciate the opportunity to
speak to this committee. My name is Peter Marone and I have
gotten a promotion since then. I am Director of the
Commonwealth of Virginia's Department of Forensic Science now
and was a member of the committee identifying the needs of the
forensic science community. Of course, this was a study that
NIJ [National Institute of Justice] funded at the request of
the Senate Appropriations Committee but it was really requested
quite heavily by the forensic science community to make it
happen.
In the testimony today, what I would like to do is shorten
and simplify all the recommendations of the committee and
specify or spend the time on four particular issues and the
full potential of the program, broken into scientific and
technical challenges that must be met in order for forensic
science enterprise to reach its full potential. I would like to
break it into four categories, the first being funding,
resources, if you will, research, standardization, and
education.
The first element really is probably one of the most
important, and it was not specifically addressed as a
recommendation by the committee, and that is the resource
issue. Although we didn't address it as a particular criteria,
it was very, very understood by the committee that for the
State and local laboratories there was a lack of resources,
whether it be money, staffing, training or equipment necessary
to promote and maintain strong forensic science systems. As you
are acutely aware right now, states are now in a fiscal crisis.
I would submit that laboratories and medical examiners' offices
have been in a fiscal crisis for a number of years. This is
nothing new for us. Further, the funding from the Federal
Government has really been focused overwhelmingly to one
discipline, and that is DNA. What I would like to say as an
individual is, make it very clear that we are asking for
funding for the full breadth of the forensic science
disciplines but not to the exclusion of DNA. In other words, we
are saying very clearly, don't take the DNA money and give it
to everybody else, keep all the disciplines funded and
supported. I want to make that very, very clear because in a
lot of issues that is a misunderstanding.
Under the category of research, the committee determined
that the forensic science disciplines need further research to
provide the proper underlying validation for some of the
methods in use and to provide the basis for more precise
statements about their reliability and precision. The report
clearly states that there is a value in many of the disciplines
addressed that the forensic science community itself has been
stating for more than a decade. In order to accomplish this we
need more funding for research and a stronger, broader research
base. Disciplines based on biological or chemical analysis such
as toxicology, drug analysis, some trace-evidence disciplines
such as explosives, fire debris, paint and fiber analysis are
all well validated and shouldn't be in the same category as the
experience-based disciplines such as fingerprints, firearms and
tool marks and other pattern recognition types of analysis. We
need studies, for instance, that look on a large population of
fingerprints and tool marks just to qualify how many sources
might share similar features. Similarly, we need more research
on the issues of context effect and examiner bias.
In standardization, for example, one of the issues was that
laboratories need to be mandatorily accredited. During our
reviews, we found that there are approximately 400
laboratories--publicly funded laboratories in the United
States, but 320 of them are already accredited so it is not
like the laboratories aren't espousing this idea, and the same
thing for the not-mandatory certification. There are a
significant number of individuals who are voluntarily being
certified.
The primary conclusion was that the forensic science
enterprise doesn't have a unified plan. It needs strong, fresh,
national direction. Strong leadership is needed to adopt and
promote aggressive long-term agenda to strengthen forensic
science. Our report strongly urges Congress to establish a new
independent institute of forensic science to lead the research
efforts, establish and enforce standards for forensic science
professionals, and oversee education. Now, I understand that
NIST [National Institute of Standards and Technology] serves
that purpose to a certain extent and we all agree that NIST
does serve a very important purpose. It does have expertise in
standardization and experience in a number of those types of
issues for establishing coherent laboratory practices and
reporting professionalism, codes of ethics and so forth. What
NIST doesn't have is all the package, and as the committee
reviewed all the existing entities, nobody has the global
experience necessary to complete the package, to give all the
planning. There are bits and pieces in every one of them,
nobody has that, and the key is that whatever entity this is
has to be something that is new in the sense that the fear is
if you put it in an existing entity or under an existing
agency, they will tend to create the new entity in their own
image and likeness, if you will. In other words, they will
continue doing things the way they do, and what we really need
is fresh thinking, new thoughts, new issues to be addressed.
I will finish up quite quickly here now. Mr. Chair and
Members of the Committee, I would like to thank you for the
opportunity to come here today. I would like to conclude by
quoting a part of our study which I believe is one of the most
important statements and findings we had. ``Numerous
professionals in the forensic science community and the medical
examiner system worked for years to achieve excellence in their
fields, aiming to follow high ethical norms, develop sound
professional standards, ensure accurate results in their
practices and improve the processes by which accuracy is
determined. Although the work of these dedicated professionals
has resulted in significant progress in the forensic science
disciplines in recent decades, major challenges still face the
forensic science community.''
I thank you for your time. I will be pleased to answer any
questions you have.
[The prepared statement of Mr. Marone follows:]
Prepared Statement of Peter M. Marone
Good morning, Mr. Chairman and Members of the Committee. My name is
Pete Marone. I am Director of the Commonwealth of Virginia's Department
of Forensic Sciences and a member of the Committee on Identifying the
Needs of the Forensic Science Community of the National Research
Council. The Research Council is the operating arm of the National
Academy of Sciences, National Academy of Engineering, and the Institute
of Medicine of the National Academies, chartered by Congress in 1863 to
advise the government on matters of science and technology. Our study
was sponsored by the National Institute of Justice at the request of
the Senate Appropriations Committee.
This study, as you know, was requested by Congress at the urging of
the Crime Lab Community itself. The charge was (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] inter-
operability of Automated Fingerprint Information Systems; and (8)
examine additional issues pertaining to forensic science as determined
by the Committee. The reason the community asked for this study was due
to the fact that the focus of the Federal Government has been on the
single discipline of DNA. The community, including myself, knew that
the other disciplines and the state of our system needed to have
further resources and assistance from the Federal Government. In my
testimony today I will simplify, due to time, our report--Strengthening
Forensic Science in the United States: A Path Forward--into the
scientific and technical challenges that must be met in order for the
forensic science enterprise in the United States to operate to its full
potential. Specifically, I will discuss them in four classes of
resources, research, standardization, and education, as these are the
primary challenges at this time. The report found that some of this
work has already been begun by forensic scientists, but that additional
effort and coordination are needed to carry it through.
The first element of the charge, while not specifically addressed
in the form of a recommendation, led to a clear committee understanding
that in general, ``for the State and local laboratories there has been
a lack of resources (money, staff, training, and equipment) necessary
to promote and maintain strong forensic science laboratory systems.''
As I know you are acutely aware, the states are in a fiscal crisis. As
a State Crime Lab Director I know that this has in fact been the
situation for some time. As such, the State and local Crime Labs and
the Medical Examiner community have not been receiving the funds they
need, but the case load has been increasing exponentially. Further, the
funding from the Federal Government has been focused overwhelmingly on
the discipline of DNA, which is not our largest caseload. The Congress
has consistently put some funding in for the other disciplines but it
falls far short of what is necessary. I want to make it clear, Mr.
Chairman, that this is at the root of many of our issues and, speaking
as an individual, I am asking Congress to please put funding in at an
adequate level for all of forensic science, not just a single
discipline.
Under the category of research, the committee determined that some
of the forensic science disciplines need further research to provide
what the scientific community commonly uses as the proper underlying
validation for some of the methods in common use and to provide the
basis for more precise statements about their reliability and
precision. Because a method has not been sufficiently validated does
not make it invalid. In order to accomplish this, we need more funding
for research and a stronger, broader research base. The disciplines
based on biological or chemical analysis, such as toxicology, drug
analysis, and some trace evidence sub-disciplines such as explosives,
fire debris, polymers to include paint and fiber analysis, are
generally well validated and should not be included in the same
category as the more experience-based disciplines, such as
fingerprints, firearms and toolmarks, and other pattern-recognition
types of analysis. There are variations within this latter group; for
example, there is more available research and protocols for fingerprint
analysis than for bite marks. We need studies, for instance, that look
at large populations of fingerprints and toolmarks so as to quantify
how many sources might share similar features. In addition to
investigating the limits of the techniques themselves, research is also
needed on the effects of context and examiner bias.
In the realm of standardization and education our report raised
concerns about the lack of mandatory requirements for professional
certification and for laboratory accreditation and the variability in
the way forensic science results are reported in courts. I think it is
critical to first understand that most in the forensic science
community have already begun to move in the direction of accreditation;
in fact the recently published Census of Publicly Funded Crime
Laboratories, 2005 stated that by 2005, 82 percent of the public
laboratories were accredited. That number is even higher today. But
more can be done. Our report calls for certification that is based on
written examinations, supervised practice, proficiency testing, and
adherence to a code of professional practice. The report explicitly
calls for the National Institute of Standards and Technology, NIST, in
collaboration with the proposed National Institute of Forensic Science
[NIFS] to be involved in setting standards for certification and
accreditation and in developing protocols and best practices for
forensic analysis, using existing programs as a basis. Assisting
laboratories which have not yet been accredited is a lengthy process.
Each policy and method must be reviewed to determine if it is in
compliance and, if not, what must be done to bring it into compliance.
This process can take a few years. That is not to say that the work
done by the laboratory is suspect during the process, but that the
standards and criteria are quite specific.
Our report's primary conclusion is that the forensic science
enterprise does not have a unified plan and needs strong, fresh
national direction. Strong leadership is needed to adopt and promote an
aggressive, long-term agenda to strengthen forensic science. Our report
strongly urges Congress to establish a new, independent National
Institute of Forensic Science to lead research efforts, establish and
enforce standards for forensic science professionals and laboratories,
and oversee education standards. Our committee carefully considered
whether such a governing body could be established within an existing
agency, and determined that it could not. While we recognize the
difficulty with this task, we believe that the root of the struggles
this community has is the lack of federal support and guidance.
However, while we were impressed with the technical abilities of
three NIST staffers who briefed our committee, and in fact had a NIST
scientist as a member of our committee, we concluded that NIST does not
have expertise in enough of the essential areas to play the governance
role that forensic science needs. First, while NIST has a strong
reputation in some aspects of forensic science, it would not be seen by
that community as a natural leader. In large part that is because the
context in which forensic science operates is unique. For example,
forensic science must make the most of whatever evidence has been
collected, a situation that is not always amenable to prescriptive
standards. And the recommended new federal entity must be sensitive to
the interplay between forensic sciences and the criminal justice
system, which is unfamiliar territory for NIST. Our report calls on the
new entity to lead an effort to remove public forensic laboratories
from the administrative control of law enforcement agencies or
prosecutors' offices or be autonomous within such agencies. That is
likely to be a difficult task, one that requires knowledge of
relationships among those operations and between federal, State, and
local jurisdictions. It is a challenge to which NIST is not well
suited.
As I already indicated, a key recommendation of our report is to
build up the research base and educational infrastructure that will
enable forensic science to move forward. NIST does not have much
experience in establishing and running an extramural research program,
and its ability to stimulate new academic forensic programs and
strengthen existing ones is untested. Another key requirement is to
strengthen the practices of forensic science. While NIST has great
expertise in establishing laboratory standards, it has not previously
taken on a task similar to what is required for forensic science:
establishing a coherent set of standards for laboratory practice,
reporting, and professionalism (including codes of ethics), along with
standards and practices for laboratory accreditation and professional
certification and incentives for their widespread adoption.
NIST does not have expertise in, and influence over, the
medicolegal death investigation system, nor expertise in the issues
that need to be addressed to strengthen that system, a critical
recommendation in our report.
However, the strongest reason for establishing a new independent
entity is that it could then be established according to the vision
laid out in our report. If a new institute is established as an arm of
some existing entity, that entity will tend to design it according to
its own existing knowledge and experience, with whatever bureaucracy or
biases that entails. As an example of this very issue, a draft copy of
a white paper from NIST, provided to me by the staff of this committee
regarding the establishment of a National Institute of Forensic Science
within NIST, lists a number of actions it proposes to answer the
recommendations of the NAS report. However, what was not addressed at
all in that proposal was how the existing accreditation programs (both
for laboratories and forensic science undergraduate and graduate
education programs), programs for certification of individuals, and the
technical protocols (although not mandatory) that are already in place
through the various scientific working groups (SWGs) and in use by many
laboratories, would serve as a basis for and be incorporated into the
plan. There also was no indication as to how laboratories would be
supported in their efforts to meet these standards.
Mr. Chairman and Members of the Committee, I thank you for the
opportunity to come before you today. I'd like to conclude by quoting a
part of our study which I believe is one of the most important
statements and findings we had:
``Numerous professionals in the forensic science community and
the medical examiner system have worked for years to achieve
excellence in their fields, aiming to follow high ethical
norms, develop sound professional standards, ensure accurate
results in their practices, and improve the processes by which
accuracy is determined. Although the work of these dedicated
professionals has resulted in significant progress in the
forensic science disciplines in recent decades, major
challenges still face the forensic science community.''
Again, thank you for your attention, and I will be pleased to
answer questions.
Biography for Peter M. Marone
B.S. Chemistry, University of Pittsburgh, 1970
M.S. Chemistry, University of Pittsburgh, 1971
Pete Marone began his forensic career at the Allegheny County Crime
Laboratory in 1971 and remained in Pittsburgh until 1978 when he
accepted a position with the Virginia Bureau of Forensic Science. In
1998 he became the Central Laboratory Director with the Division. On
February 1, 2007 he was appointed Director of the Virginia Department
of Forensic Science. He is a member of the American Society of Crime
Laboratory Directors (ASCLD), American Academy of Forensic Sciences,
Mid-Atlantic Association of Forensic Scientists, Forensic Science
Society, and the International Association for Chemical Testing. He has
served on the ASCLD DNA Credential Review Committee and as the chair of
the undergraduate curriculum committee of the Technical Working Group
for Forensic Science Training and Education (TWGED), is a past Chair of
ASCLD-LAB (Laboratory Accreditation Board). He is a member of the
Forensic Education Program Accreditation Commission (FEPAC) for the
American Academy of Forensic Sciences, and served on the National
Academy of Sciences Committee on Identifying the Needs of the Forensic
Science Community. He is currently Chair of the Consortium of Forensic
Science Organizations (CFSO).
Chair Wu. Thank you, Mr. Marone.
Ms. Henderson, please proceed.
STATEMENT OF MS. CAROL E. HENDERSON, DIRECTOR, NATIONAL
CLEARINGHOUSE FOR SCIENCE, TECHNOLOGY AND THE LAW; PROFESSOR OF
LAW, STETSON UNIVERSITY COLLEGE OF LAW; PAST PRESIDENT, THE
AMERICAN ACADEMY OF FORENSIC SCIENCES
Ms. Henderson. Thank you, Mr. Chair and Members of the
Subcommittee. I was already introduced but I wanted to mention
that as the Director of the National Clearinghouse for Science,
Technology and the Law, we have created the only searchable
database in the world of Raw science and technology
information. As you mentioned, I am also a Professor of Law and
the immediate Past President of the American Academy of
Forensic Sciences, and in fact, two of the officers of the
Academy are here in the audience today.
I was an Assistant United States Attorney with extensive
experience; I was also a founder of the Florida Innocence
Project; and I have more than 20 years of involvement in
teaching and scholarly writing on the interface of science and
law. I am well aware of the importance of forensic science to
the justice system and the nexus between science and law is
critical to forensic science. We therefore have to recognize
that the forensic overhaul which has been desired by the NAS
[National Academy of Sciences] committee with extensive work,
and I did go to four of the five hearings that they had,
requires a collaboration of all the stakeholders: attorneys and
judges, crime laboratory and technical personnel and the civil
expert witnesses as well.
I believe we have really been presented with an opportunity
to make forensic science serve justice even more reliably and
effectively. This is the time to build better forensic science,
but we must be realistic in regard to the urgency of acting now
and not permitting defects identified in the report to go
unaddressed, yet we have to make the best use of available
resources and go forward in a measured and considered manner
that creates sound and lasting systems. I am therefore
recommending a three-step approach.
One is immediate action using existing federal resources to
address scientific standards. Two, we need interim action which
will evaluate strategic policy decisions and strategies and
explore innovative solutions. Vision is needed. And then a
long-term goal of creating a National Institute of Forensic
Sciences [NIFS] as envisioned by the [NAS] committee.
The urgent action, which I am going to go to first, is
making the best use of our existing resources. Many of the
issues that were identified in the report concern scientific
foundation of disciplines and subdisciplines in forensic
science. The concerns range from, and I quote, ``Are these
techniques fundamentally unsound'' to, while there is a body of
evidence that the techniques are of value, there is a lack of
validation to the degree that has been established in the
introduction of DNA testing. There is an existing federal
agency well suited to the task, namely the National Institute
of Standards and Technology [NIST]. This is where we can begin.
NIST has a national role in promoting scientific standards and
has made significant contributions to the core science in
several areas of forensic science, although not in all areas of
forensic science.
Now I would like to move on to the interim action. We need
to implement a program to address policy issues and focus on
innovative processes and these include, and I have to echo
Pete, we need research, much more of it. We need education, and
it is not just for the people who are in the crime
laboratories, but for lawyers and judges. We need, of course,
to continue accreditation and credentialing. We cannot be
bridged with a Band-Aid, and I brought crime scene Band-Aids to
show you all. You can have one later. All right. But, it is
true a Band-Aid is not going to solve this problem, but a
bridge will, and I think that is one thing that we have to look
at. So these interim issues must be addressed, and in fact,
notably, I have to tell you, there are very few papers
regarding forensic science policy out there, and that is
something else that needs to be addressed as well. There is no
established forensic equivalent to think tanks like the Aspen
Institute, and my objective in discussing these interim
objectives with you is to emphasize how important they are and
the need for carefully thought out policy and strategic
planning.
The long-term action is to create a NIFS, and I am very
familiar with NIFS in Australia. It took them 20 years to get
off the ground. And I talked to Alistair Ross, who is now the
interim director, who was the original director there, and I
talked to him last night. Many of the recommendations say this
is great to have an oversight and coordinating body, but you
really have to be practical, and I have to say, that is one
thing: I am practical. This committee knows all too well the
lengthy, you know, consultative processes that will have to be
undertaken if the government chooses to pursue creating a NIFS
in the United States. The process will not be instant and will,
as with the interim issues discussed above, benefit from
careful analysis of policy, strategic planning and
implementation factors.
All right. So now I would like to talk about the overhaul,
which is what was recommended in the NAS report, and these are
more general considerations based on my personal experience
both as a law professor, a federal prosecutor and the Past
President of the American Academy of Forensic Sciences [AAFC],
although as I mentioned, I am not here as a spokesperson for
the Academy, only the president or the president-elect can
speak. The lack of academic freedom in research and development
results in a stifling of forensic science. As long as the
overwhelming body of forensic science does not challenge itself
or respond to the voices of all its stakeholders, especially
the legal community which is a primary stakeholder, we won't
move forward. I do have great hope, though, for forensic
science. In fact, my theme while I was the President [of AAFS]
was, Forensic Science: Envisioning and Creating the Future.
AAFS, I have to tell you, has recognized education,
credentialing accreditation, and we actually raised more than
$300,000 last year for forensic science research because I
knew, and I think all of us knew, it was a priority. And we
have really welcomed the NAS report, and under President Tom
Bohan, who is in the audience here, we will continue to
champion changes to the forensic landscape.
So how do we make significant changes? We can draw an
analogy with the race to the Moon. The Space Age had
catastrophes just like forensic science, but its successes came
because there was a stretching, but achievable goal and
scientists and engineers at NASA could apply themselves to
delivering successful outcomes. Give forensic science the same
target and we will see even more progress than has been
achieved so far. Challenging the status quo is as important as
a unified commitment to a clear set of objectives and a
strategic plan. We must identify innovative approaches. It is
very key to be strategic. Innovation is a cultural issue as
much as one of the infrastructure and a case can be illustrated
by comparison to the medical model of education and research.
Medical schools in top-tier universities act as centers of
excellence and a second opinion is allowed, in fact expected.
By contract, forensic science sometimes responds defensively to
criticism and regards requests for a second opinion as a slight
and not as a tool to encourage interaction with stakeholders. I
have to say, Representative Gordon, the Chair of the House
Committee on Science and Technology, has reminded us that
scientific progress occurs when we foster the open exchange of
ideas and information. That is excellent advice and could form
the basis of a goal of collaboration between all our
stakeholders, and President Obama has also pledged to place
science at the top of the national agenda commitment, and that
is something we in forensic science embrace.
I would like to thank the Committee for the opportunity to
address you and your serious consideration of the report.
[The prepared statement of Ms. Henderson follows:]
Prepared Statement of Carol E. Henderson
Mr. Chairman and Members of the Subcommittee:
My name is Carol Henderson. I am the Director of the National
Clearinghouse for Science Technology and the Law (NCSTL), which is a
program of the National Institute of Justice. Through my leadership of
NCSTL, I have been responsible for creating the only searchable
database on science, technology and law information in the world. I am
a Professor of Law at Stetson University College of Law, and the
immediate Past President of the American Academy of Forensic Sciences.
As an Assistant United States Attorney with extensive experience, a
founder of the Florida Innocence Project, and more than twenty years of
involvement in teaching and scholarly writing on the interface between
science and law, I am well aware of the importance of forensic science
to the justice system. The nexus between science and law is critical to
forensic science. We therefore have to recognize that the ``forensic
overhaul'' desired by the NAS Committee on Identifying the Needs of the
Forensic Sciences Community requires the collaboration of all
stakeholders: attorneys and judges, crime laboratory and technical
personnel, and civil expert witnesses.
We have been presented with an opportunity to make forensic science
serve justice even more reliably and effectively. This is the time to
build better ``forensic science.'' However, we must be realistic in
regard to the urgency of acting now and not permitting defects
identified in the report to go unaddressed, yet make the best use of
available resources and go forward in a measured and considered manner
that creates sound and lasting systems.
I am therefore recommending a three-step approach:
immediate action that uses existing federal resources
to address scientific standards;
interim action to evaluate strategic policy
directions and strategies and explore innovative solutions;
a long-term goal of creating a National Institute of
Forensic Sciences (NIFS) as envisioned by the NAS Committee on
Identifying the Needs of the Forensic Sciences Community.
Urgent Action: Making the best use of existing resources:
Many of the issues identified in the report concern the scientific
foundation of disciplines and sub-disciplines in forensic science. The
concerns range from ``are these techniques fundamentally unsound'' to
``while there is a body of evidence that the techniques are of value,
there is a lack of validation to the degree that has been established
in the introduction of DNA testing.''
There is an existing federal agency well-suited to the task, namely
the National Institute of Standards and Technology (NIST). NIST has a
national role in promoting scientific standards, and has made
significant contributions to the core science in several areas of
forensic science. Its successes include advancement of the fundamental
science of forensic DNA testing, fundamental work on AFIS systems, and
major contributions to firearms comparisons. These bring together areas
defined at various points in the NAS report as being the new scientific
gold standard of forensic testing (DNA) and areas that are badly in
need of fundamental research to provide a valid scientific basis to
support decades of technical experience (fingerprinting and firearms/
tool mark examination). NIST also has a well-deserved reputation for
independence--a recurring concern of the NAS panel.
Interim Action: Implement a program to address policy issues and focus
on innovative processes:
The corollary to the need for rapid action and using existing
resources such as NIST to address scientific standards, is that the
wider issues such as those of the independence of crime laboratories
and encouraging education, research, accreditation and credentialing,
require very careful development and consideration. For example, more
than 90 percent of the Nation's crime laboratories are housed in law
enforcement agencies. Any effort to change that will have major
budgetary and operational consequences. We need to be certain that such
action is founded in fact and that the change will produce the benefits
expected. The very fact that more than 90 percent of the Nation's crime
laboratories are administered from within law enforcement agencies
means that sophisticated models and analysis will be needed to prove
the case.
Accreditation has already been addressed in the forensic community.
There are established programs that provide accreditation to
international standards and that have been accepted by the great
majority of forensic science service laboratories, and indeed, as is
recognized in the report, some states require their forensic science
laboratories to be accredited. There are also existing certification
programs in the forensic community, but there are no mandatory
requirements and the response of public and private laboratories has
been sketchy. The courts also have a vital say, with their role as
gatekeepers of admissibility. The whole question of federal, State and
local recognition, creation and funding of registration bodies, and the
definition of meaningful certification standards is another case where
a considered policy review is required to prevent waste of resources
and miss-steps in implementation.
The report identified shortcomings in research, education, and
standards of practice in the Nation's crime labs. In-depth research and
analysis of options leading to strategic policy and implementation
plans is needed. The infrastructure to address the absence of a
national research agenda in forensic science does not exist; the gap
between service standards and high quality and life-long education
cannot be bridged with a band-aid; and realization of the committee's
recommendation to create a National Institute of Forensic Science
(NIFS) as an independent oversight and coordinating body is a long-term
issue.
These interim issues must be addressed, notably papers regarding
forensic science policy are marked by their absence. There is no
established forensic equivalent to think tanks like the Aspen
Institute, for example. My objective in discussing these interim
objectives with you is to emphasize their importance and the need for
carefully thought-out policy and strategic planning.
Long-term action: Create a National Institute of Forensic Science
(NIFS):
Many of the recommendations of the NAS Committee on Identifying the
Needs of the Forensic Sciences Community center on NIFS as an oversight
and coordinating body, and defer action to NIFS. However, it took more
than 20 years from articulation of the concept before there was an
operational NIFS in Australia. This committee knows only too well the
lengthy consultative processes that will have to be undertaken if the
Government chooses to pursue creating a NIFS in the United States. The
process will not be instant and will, as with the interim issues
discussed above, benefit from careful analysis of strategic policy and
implementation factors, leading to a policy and implementation plan.
The focus of the make-over
I would like to turn now to more general considerations based on my
personal experience as a law professor, federal prosecutor and Past
President of the American Academy of Forensic Sciences (AAFS). There is
a tendency for crime laboratory administration to be conservative, and
its ability to foster communication, collaboration and innovation
probably suffers--as alluded to in the report--from the absence of a
meaningful university presence in forensic science. The lack of
academic freedom in research and development results in stifling of
forensic science. As long as the overwhelming body of forensic science
does not challenge itself or respond to the voices of all its
stakeholders, especially the legal community which is its primary
stakeholder, we will not move forward.
I have great hope for the future of forensic science. In fact, my
theme while I was President of the AAFS was ``Forensic Science:
Envisioning and Creating the Future.'' AAFS has recognized the
importance of education and credentialing by creating a Forensic
Science Programs Education Committee and the Forensic Specialities
Accreditation Board to review the quality of forensic education
programs and assess boards or organizations that certify individual
forensic scientists or other specialists. The Forensic Sciences
Foundation during my presidency of AAFS raised more than $300,000 to
support research. AAFS has welcomed the NAS report and under President
Tom Bohan will continue to champion changes to the forensic landscape.
These initiatives are a start, but how can we make the significant
changes that are needed? We can draw an analogy with the race to the
Moon. The space age had its catastrophes just like forensic science,
but its successes came because there was a stretching but achievable
goal and the scientists and engineers at NASA could apply themselves to
delivering successful outcomes. Give forensic science the same target
and we will see even more progress than has been achieved so far.
Challenge to the status quo is as important as a unified commitment to
a clear set of objectives and a strategic plan.
Identifying innovative approaches is therefore a key strategic
issue: forensic science will not be made better by providing increased
funds to do more of the same things that have led it to where it is.
``Innovation'' is a cultural issue as much as one of infrastructure and
the case can be illustrated by comparison to the medical model of
education, research and service delivery. Medical schools in top tier
universities act as centers of excellence that truly advance medical
science, including the critical role of transition from student to
resident to faculty, with an on-going commitment to professional
development and research. The ``second opinion'' is a natural and
accepted part of medical practice. Centers of excellence attract
independent and critical minds, ever seeking to find new and better
diagnostic and therapeutic tools. By contrast, forensic science
sometimes responds defensively to criticisms and regards requests for a
``second opinion'' as a slight and not as a tool to encourage
interaction with stakeholders.
Rep. Bart Gordon, the Chairman of the House Committee on Science
and Technology, has reminded us that ``Scientific progress occurs when
we foster the open exchange of ideas and information.'' That is
excellent advice and could form the basis of a goal of ``Collaboration
between all stakeholders to build, by 2014, a solid foundation from
which reliable scientific and technologic services can be provided to
the whole of the justice system.'' President Obama has pledged to place
science at top of the national agenda, a commitment that we in forensic
science embrace.
Summary:
In closing, I thank the Committee for the opportunity to address
you and for your serious consideration of the report of the NAS
Committee on Identifying the Needs of the Forensic Sciences Community.
As we move forward we have to be conscious of the need for action,
tempered by awareness of the current economic situation and by the
importance of responding to the opportunity given to us by the NAS
report in a way that will result in lasting and effective solutions. To
that end, I have recommended a three-stage approach:
Immediate action that uses existing federal resources
to address scientific standards
Interim action to evaluate strategic policy
directions and strategies, and explore innovative solutions to
areas such as education and research, and
Long-term action to create a National Institute of
Forensic Science (NIFS).
Biography for Carol E. Henderson
Professional affiliations:
Past President, American Academy of Forensic
Sciences
Co-Chair Future of Evidence Committee,
American Bar Association Science and Technology Law
Section
Vice-Chair Scientific Evidence Committee,
American Bar Association Science and Technology Law
Section
Member, International Association of Chiefs
of Police Forensic Committee.
Founding director of the National Clearinghouse for
Science, Technology and the Law (NCSTL). Professor Henderson
planned and managed its development, which includes the only
comprehensive, searchable database of science, technology and
law in the world. (www.ncstl.org). NCSTL is the most effective
source of information on science and the law, with hits from
128 countries. NCSTL also produces symposia, conducts community
acceptance panels on topics such as less lethal technologies
and produces bibliographies on science and technology issues.
Recognized as an international authority on science
and law, Professor Henderson has presented more than 250
lectures and workshops to thousands of forensic scientists,
attorneys, judges, law enforcement and military personnel
worldwide on the topics of scientific evidence, courtroom
testimony, and professional responsibility. She has lectured in
Argentina, Australia, Canada, Finland, Germany, Hong Kong,
Italy, Japan, Scotland, Spain and Taiwan.
Professor Henderson has more than fifty publications
on scientific evidence, law and ethics. She is an editor of the
Encyclopedia of Forensic and Legal Medicine (2005), which
received the Minty Prize from the British Medical Association.
Her latest book, the 5th edition of Scientific Evidence in
Civil and Criminal Cases was published in 2008. She serves on
the editorial boards of the Journal of Forensic Sciences, the
Journal of Clinical Forensic Medicine, and the Forensic
Science, Medicine and Pathology Journal. She also serves on
numerous working groups for the National Institute of Justice.
Professor Henderson has appeared in both the popular
and professional media, including National Public Radio, Fox
National News, CBS ``48 Hours,'' The John Walsh Show, Montel,
TruTV, Court TV, the American Bar Association Journal and
Lawyers Weekly USA.
Professor Henderson received her J.D. degree from The
National Law Center, George Washington University in 1980.
Prior to receiving her J.D., she worked for the Federal Bureau
of Prisons and the Department of Justice Criminal Division. She
began her legal career as an Assistant United States Attorney
in Washington, D.C.
Chair Wu. Thank you, Ms. Henderson.
Mr. Hicks, please proceed.
STATEMENT OF MR. JOHN W. HICKS, DIRECTOR, OFFICE OF FORENSIC
SERVICES, NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES
(RET.); FORMER DIRECTOR, FBI LABORATORY
Mr. Hicks. Thank you, Mr. Chair and Members of the
Subcommittee. Thank you for the opportunity to be here to
provide my perspectives on this whole study today.
As Mr. Marone did, I tried to group the 13 recommendations
of the National Academy of Sciences' study into four
categories. My categories are very similar to his, the first
category being methods development and standardization. I think
this is probably the most critical area where the needs are
severe right now. The other category, laboratory accreditation
and quality assurance, the third category, research and
training, and the fourth, resource requirements, and those
latter three categories Congress has already undertaken a
number of initiatives that have helped the laboratories
considerably under the DNA backlog programs and the Paul
Coverdale Forensic Science Improvement Program. In my
experience working with New York State over the last eight
years, we had 22 laboratories operating within that state, and
I can tell you that each of these laboratories benefits
substantially from that, and relies on those funds to continue
to improve their programs and operations. They are critical
programs and I would hope that they would be continued.
Of course, the confidence in DNA technology was brought
about in large part because the underlying developmental work
that was done. We were fortunate at the time that work took
place that it was a brand-new technology. It was quickly
recognized, the significance and importance of the technology,
for forensic science and so we had many agencies come together.
The FBI, the National Institute of Justice and NIST [National
Institute of Standards and Technology], among those agencies
working with commissions and others around the country spent an
enormous number of hours trying to work and address the various
implementation issues. It wasn't efficient but it did seem to
get us to the right place in the end.
Of course, the National Academy committee expressed
concerns, as Mr. Marone pointed out, with a lot of pattern
recognition types of things: firearms identification,
fingerprint matching, and so forth. I think it is significant
to note that NIST has played an important role in those
functions. They did a big study not only with respect to DNA
technology, but did a huge study with respect to the Automated
Fingerprint Identification System, which helped to identify the
standards to help the system work more efficiently. And of
course, that is a system relied upon every minute of every day
by every police department in the country to carry out its
work. They also performed a very helpful study with respect to
a firearms database system to capture fired ammunition
components and the image data from the markings on those
bullets and data, and that has resulted in what is now called
the NIBIN, National Integrated Ballistics Identification
Network, and it is used widely by firearms examiners around the
country. It is a good training tool to help begin to maybe
generate leads in ongoing investigations. So NIST has played an
important role in those two. Of course, with respect to
toxicology and chemistry and general analytical services, NIST
routinely provides standards that are used for traceability and
quality control purposes when in those operations.
From my perspective, I think an expanded role for NIST
represents the most effective and efficient way to bring about
needed improvements in the forensics community. It would bring
focus and it would draw on their core competencies, which of
course relate to standards development and validation of work.
I suspect there is a lot of work out there that if brought
together--existing work out there brought together and sort of
examined closely under great scrutiny, some NIST studies put
together to round out the available data, I suspect that many
of the troublesome questions that the Academy report found
might be addressed fairly quickly through an organization like
NIST.
It would be helpful, of course, for NIST to--I think the
DNA model, while not necessarily all that efficient, did draw
on collaboration between federal agencies that have some
competencies in this area and had connections with the
community. I think it would be very important of course for
NIST to expand its relationship with the forensic community.
One of the things that has evolved over the last few years has
been what are called scientific working groups. And these are
typically experts in different disciplines brought together to
share their concerns and questions and issues that come up and
it has been a very productive way to help promote standards. In
fact, many of those groups have defined their own--started
putting together information that helps define what the
operating standards and procedures should be for their
disciplines. What would be helpful is to expose these data to
some good, heavy, rigorous scientific scrutiny as well.
So I think I will conclude with that. As I said, my
perspective is that NIST provides an opportunity here to really
help in the area which I think is the greatest need, and that
is focusing on the standards development and the
standardization aspects.
[The prepared statement of Mr. Hicks follows:]
Prepared Statement of John W. Hicks
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to appear before you today and to offer my perspective on
the findings and recommendations found in the recently released report
of the National Academy of Sciences (NAS), Strengthening Forensic
Science in the United States: A Path Forward. The Academy was given a
broad charge to assess the state of forensic practices across the
country and to make recommendations for improvement. In addition to
traditional forensic laboratory services, the scope of its review
included functions of medical examiners and coroners in determining
cause and manner of death.
The recommendations found in the NAS report fall into four broad
categories:
(1) methods development and standardization; (2) laboratory
accreditation and quality assurance; (3) research and training; and (4)
resource needs. As described briefly below, a number of congressional
initiatives over the past few years have directed much needed attention
to resource needs and to forensic laboratory quality improvement
issues, including laboratory accreditation and staff training. It is
recommended that support for these initiatives be continued. It is
clear, however, that additional steps are needed to address critical
concerns related to methods development and validation, especially for
forensic disciplines other than DNA analysis.
With regard to the forensic use of DNA technology, Congress has
authorized a series of programs that provide resources needed to meet
the unprecedented demand for testing services. These programs are
administered by the National Institute of Justice and are intended to
help eliminate testing backlogs and reduce case turnaround times, to
provide defendants with access to post-conviction DNA testing, and to
help assure that the technology is used effectively to identify missing
persons.
With regard to ``non-DNA'' forensic laboratory services and medical
examiners, legislation was enacted in 2000 which created the Paul
Coverdell Forensic Science Improvement Program which awards grants to
states and units of local government to help improve the quality and
timeliness of forensic science and medical examiner services. Among
other things, the Coverdell program calls for laboratory accreditation
by recognized accrediting bodies and provides for staffing and training
needs. To assure transparency in laboratory operations, especially when
problems may be indicated, Coverdell also requires that there be an
independent entity with authority to investigate allegations of
malfeasance or misconduct by laboratory personnel. While working in New
York State, it has been my experience that these programs have been
effective in bringing needed improvements to the 22 State and local
forensic laboratories across the State. It is strongly recommended that
support for these programs be continued and expanded.
In the Senate report that led to the NAS study, and in the NAS
report itself, forensic DNA technology was set apart from other
forensic disciplines in terms of what is known of the robustness of the
underlying research and the methods validation work that was conducted
to support its applications in the criminal justice system. The
confidence in forensic DNA technology is the result of the considerable
efforts of scores of scientists in the public and private sectors,
working with academic researchers and forensic science practitioners,
to assess, validate and optimize the various DNA testing methods in use
today. A national Technical Working Group was formed at the outset to
facilitate communication among forensic practitioners and help advance
the technology in a coordinated way. The Technical Working Group on DNA
Analysis Methods (TWGDAM) was specifically cited in the DNA
Identification Act of 1994 which authorized CODIS, the national DNA
Database. This effort was driven by Congressional leaders and agency
administrators who recognized the importance and potential of this
emerging technology as an identification tool to solve crimes and
assure justice in the courts. High level support and direction was
essential to maintain a focus that would assure the standardized
methods necessary for data compatibility to enable the mutual sharing
of information. Key federal agencies that contributed to the
development and validation of forensic DNA technology include the
Federal Bureau of Investigation (FBI), the National Institute of
Justice (NIJ) and the National Institute of Standards and Technology
(NIST).
The NAS Committee expressed concern over the apparent lack of
systematic research to validate the basic premises and techniques for
forensic disciplines that have been in practice since before the
emergence of DNA technology. Disciplines which drew particular
attention in their report are those that rely, in large part, on
pattern recognition techniques such as those used in the examination of
fingerprints; firearms and fired ammunition components; tool marks; and
handwriting, among others. For these and other ``non-DNA'' forensic
techniques that are widely used today, it would be helpful to identify
and gather existing empirical studies, to conduct other studies as
deemed necessary to update or supplement these data, and to put the
information in a form that is readily disseminated within the relevant
forensic and scientific communities. Based on these studies,
appropriate standards should be developed or updated to assure the use
of uniform and scientifically validated examination techniques by
forensic practitioners. These appear to be areas of study for which the
core competencies found in NIST are particularly well suited.
While perhaps best known for its work in industry, NIST has been
actively involved with elements in the forensic community over the past
decade and has made important contributions working collaboratively
with other federal agencies, industry and academia. For example, the
agency undertook a number of inter-laboratory and other studies
pertaining to individual markers used in DNA identification which have
helped guide the successful development and forensic application of
this revolutionary technology. The results of these efforts are in
daily use in public and private forensic DNA laboratories and NIST
scientists have presented their work in academic courses in order to
prepare the next generation of forensic scientists. They have also
provided in-service training sessions and in addition, seminars at
professional meetings across the country.
NIST has also performed studies designed to validate and improve
the performance of large data systems used in criminal justice
applications such as the Automated Fingerprint Identification System
(AFIS), a vital system in continuous use by law enforcement and other
agencies to resolve personal identification issues, and the National
Integrated Ballistics Identification Network (NIBIN) which correlates
imaged data from bullets and cartridge casings recovered during the
course of criminal investigations. NIST provides standard reference
materials for use by laboratories in private industry as well as public
laboratories (including forensic laboratories). As new technologies
continue to emerge with potential applications in forensic
laboratories, NIST is uniquely positioned to facilitate communications
between the forensic community and private industry to assure the
timely and appropriate development and production of laboratory
equipment, reagents and other supplies needed for implementing new
techniques.
An expanded role for NIST represents the most effective and
efficient way to bring about needed improvements in the forensic
science community and to assure appropriate focus in the development of
new technology opportunities that emerge in the future. The activities
described above, and others that can be cited by officials from NIST,
clearly demonstrate the agency's unique competencies which can be
brought to bear more widely in the forensic community not only to
validate current methods and practices, but also to define a structure
which can guide a long-term process of continuous improvement. The DNA
experience provides a useful model and a framework upon which to build.
This framework includes working with other federal agencies such as the
FBI and NIJ, and engaging established Scientific Working Groups for
specific forensic disciplines. If charged with this role by Congress,
it would be expected that NIST would establish a coordinating body to
provide oversight and direction to the effort. This body might include
officials from the criminal justice and crime laboratory communities,
key professional associations, and established accrediting
organizations such as the American Society of Crime Laboratory
Directors--Laboratory Accreditation Board (ASCLD/LAB) and the American
Board of Forensic Toxicology (ABFT).
Biography for John W. Hicks
From May 2000 to January 2008, Mr. Hicks was the Director of the
Office of Forensic Services, New York State (NYS) Division of Criminal
Justice Services. Responsibilities of the Office include oversight of
the State DNA database and providing staff support to the NYS
Commission on Forensic Science. The Commission sets mandatory
accreditation standards for 22 State and local forensic laboratories
operating in New York (eight of which perform forensic DNA analysis)
and monitors laboratory compliance. The Office of Forensic Services
also facilitates specialized technical training for laboratory and law
enforcement personnel, and participates in the administration of
federal and State grants to the laboratories.
Mr. Hicks was a Special Agent with the Federal Bureau of
Investigation (FBI) from 1969 to 1994 and served for much of his career
in various technical and administrative positions in the Laboratory
Division. He held the position of Assistant Director in charge of the
FBI Laboratory from 1989 to 1994. In 1994, Mr. Hicks became Deputy
Director of the Alabama Department of Forensic Sciences and was
charged, among other responsibilities, with establishing the DNA
Databank program for the state.
Mr. Hicks has been actively involved in the development of national
standards and supporting State and federal legislation for the use of
DNA technology in criminal justice applications. He was appointed by
Governors Pataki and Spitzer to the NYS Commission on Forensic Science,
is a member of the American Academy of Forensic Sciences and the
American Society of Crime Laboratory Directors. He is a former board
member of the National DNA Advisory Board. Mr. Hicks holds a Bachelor's
Degree in Chemistry from Arkansas State University and a Master's
Degree in Public Administration from the University of Southern
California. He completed the Program for Senior Managers in Government
at the John F. Kennedy School of Government, Harvard University, and
the FBI Executive Development Institute.
Chair Wu. Thank you very much, Mr. Hicks.
Dr. Downs, please proceed.
STATEMENT OF DR. JAMES C. UPSHAW DOWNS, FORENSIC PATHOLOGIST/
CONSULTANT, COASTAL REGIONAL MEDICAL EXAMINER, GEORGIA BUREAU
OF INVESTIGATION
Dr. Downs. Chair Wu, distinguished Committee Members, it is
indeed an honor and a privilege to be before you today. I speak
today as a GBI [Georgia Bureau of Investigation] employee, a
board-certified forensic pathologist, and former Director of
the Alabama Department of Forensic Sciences, where I saw
firsthand a lab system go from square one to full accreditation
while facing a crushing backlog. Most importantly, I speak as a
son who lost a mother suddenly and had to wait for answers, and
when those answers came it left many in my family with more
questions than solace.
I think the take-home lesson from the NRC [National
Research Council] report is nothing we didn't already know. For
years we had seen the initially maligned discipline of forensic
DNA identification benefit from a focused look at the potential
and the shortcomings of the science. Although some had been
skeptical, especially at first, the end result was wide
acceptance of the reliability and the validity of DNA science.
We within the rest of the forensic system eagerly sought an
independent assessment of where we all stood. The NRC report
is, as Paul Harvey would say, ``the rest of the story'':
overall, we are doing well but there is some room for
improvement.
Of the recommendations in the report, there is little but
agreement on almost everything. Most involved in the process
feel standardization of reports and terminology, research into
underlying principles and validity, addressing potential bias
and error, establishment of testable metrics, proficiency
testing, accreditation, certification, quality assurance,
ethics, enhanced forensic education, and database inter-
operability are all good things. The question today is how NIST
might fit into the forensics picture.
Certainly I don't think anybody would doubt the technical
merits of NIST and their track record of unparalleled success
in regards to analytical laboratory standards. Their greatest
strength lies in accuracy and precision--the metrics of
testing. The NRC specifically reaches out, as it should, to
NIST to partner in relevant areas where such measurement and
testing are key considerations. Thus, in areas like
standardization, research, underlying principles, validity,
potential bias and error, et cetera, NIST can, and should, be
involved. However, the day-to-day application of forensic
testing means working with less-than-optimal and highly
variable case-specific evidence and trying to obtain the best
possible test results, then reporting those findings to the
appropriate entities. NIST is primarily a laboratory science
body which does not fit well into the NRC call for significant
research in the entirety of the forensics realm. The NIST
excellence in laboratory standards and metrics does not
translate well into the larger issues of accreditation and
certification, practitioner professionalism, or administrative
areas. Nor, quite honestly, is there likely to be buy-in from
the forensic practitioners if they [NIST] did become more
involved. We already have accreditation and certification. We
have standard operating procedures in place. I don't think we
need to reinvent the wheel.
Another concern that I have is, unfortunately, I think that
NIST lacks an established history with regards to the
complexities and intricacies of interactions of law
enforcement, legal, and governmental entities so vital to the
effectiveness of the forensic system as a whole. A related
question would be: exactly under what branch of government is
there a best fit for forensics? An important point here is
while we may be scientists, those who use our reports are
oftentimes not. They are judges, prosecutors, defense counsel,
police, sheriffs, and civilians. They all share one key
concern: they want an accurate, reliable answer and they want
it quickly. These customers have different, sometimes not
entirely interrelated needs. Does the investigative aspect of
law enforcement needs or the adversarial tenor of the court
determine how a case is to be analyzed? Unfortunately,
questions are far easier than answers.
The same NRC that conducted this report called for
professionalization of forensics, specifically death
investigation, before, through the National Academies. The last
time in 2003, but also a little further back--in 1928 and again
in 1932. Perhaps it isn't surprising to see that change is slow
to come. After all, what is 80 years that we have been waiting
compared to an office, specifically the coroner, that dates to
the 900s and was reformed in 1194. Those who live in the past
are destined to stay there. I think the NRC was wise in
recognizing that none of their goals, however well intentioned,
can come about overnight. There are serious challenges, both
jurisdictional and legal, to overcome.
Independence is also an important consideration. Within my
agency, we are operationally independent, as it should be, and
as the text of the NRC report clearly defines. I have testified
many times before from the stand that I am neither pro-
prosecution nor pro-defense, I am pro-truth. I don't have a dog
in the fight. The adversaries in the courtroom are the
attorneys. I am their guest.
In closing, I think the path forward for all forensic
scientists as outlined in the National Academy of Sciences'
report is best served by that old adage, ``good enough seldom
is.'' The American people deserve better, and I think perhaps
Sir William Gladstone best summed it up: ``Show me the manner
in which a nation cares for its dead and I will measure with
mathematical exactness the tender mercies of its people, their
respect for the laws of the land and their loyalty to high
ideas.''
Thank you, Mr. Chair and Committee Members. I would be
happy to answer any questions.
[The prepared statement of Dr. Downs follows:]
Prepared Statement of James C, Upshaw Downs
Chairman Wu and distinguished Committee Members, it is indeed an
honor and a privilege to appear before you today. As the lone Medical
Examiner and death investigation professional among the witnesses, I
believe I offer a unique perspective on several of the issues raised in
the National Research Council (NRC)'s report. I speak here today as a
practitioner, a board-certified Forensic Pathologist, and a member of
several professional organizations (including The National Association
of Medical Examiners (NAME)\1\ and The American Academy of Forensic
Sciences (AAFS).\2\ I do not speak for these organizations but their
views have certainly helped shape my opinions. I speak as someone who
has seen the pinnacles of investigative success the present system has
to offer and one who has seen shameful mistakes. Most importantly, I
speak as a concerned citizen who genuinely desires the improvements the
forensic sciences and all those who use those services deserve. I speak
as a son who lost a mother suddenly and had to wait for answers--and
when those answers came, it left many in my family with more questions
than solace. For my father, he experienced the same fate a generation
earlier when his mother had no examination conducted as a lay
investigator deemed it ``unnecessary.''
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\1\ The National Association of Medical Examiners (NAME) is the
national professional organization of physician medical examiners,
medical death investigators and death investigation system
administrators who perform the official duties of the medicolegal
investigation of deaths of public interest in the United States. NAME
was founded in 1966 with the dual purposes of fostering the
professional growth of physician death investigators and disseminating
the professional and technical information vital to the continuing
improvement of the medical investigation of violent, suspicious and
unusual deaths. Growing from a small nucleus of concerned physicians,
NAME has expanded its scope to include physician medical examiners and
coroners, medical death investigators and medicolegal system
administrators from throughout the United States and other countries.
\2\ The American Academy of Forensic Sciences is a multi-
disciplinary professional organization that provides leadership to
advance science and its application to the legal system. The objectives
of the Academy are to promote education, foster research, improve
practice, and encourage collaboration in the forensic sciences.
---------------------------------------------------------------------------
I was asked to review the scientific and technical issues raised by
the NRC Report on Forensic Sciences and how the National Institute of
Standards and Technology might fit into that picture. I should like to
address my remarks primarily to the discipline of Forensic Pathology
and medicolegal death investigation (see recommendation #11), which I
see as a microcosm of the issues involving the forensic Sciences as a
whole. I think that perhaps Sir William Gladstone best summed it up:
``Show me the manner in which a nation cares for its dead and I will
measure with mathematical exactness the tender mercies of its people,
their respect for the laws of the land, and their loyalty to high
ideals.''
The focus of the entire ``status of forensics'' to me comes down to
uniformity and best practices (see NRC recommendation #2). A different
quality of death investigation should not depend on where one has the
misfortune of dying. Surviving family members and the courts should not
be forced to wait because a motor vehicle crash victim didn't quite
make it over the State line to a better jurisdiction. In order to
ensure that all forensic autopsies are created equal, NAME developed
and implemented Forensic Autopsy Performance Standards in 2006.\3\
Experienced practitioners formulated guidelines that were carefully
considered and adopted by the membership at large. The intent was to
create a procedure whereby the technical aspects of the performance of
the forensic autopsy were consistent from jurisdiction to jurisdiction
in order to guarantee a quality product. Are there very real and very
serious problems when best practices are not followed? One need only
look at recent\4\,\5\ events regarding autopsies by un-
boarded, non-Forensic Pathologist examiners to see the consequences.
Truly those who do not learn from the mistakes of the past are destined
to repeat them.
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\3\ Forensic Autopsy Performance Standards, http://thename.org/
index.php?option=
com-docman&task=cat-view&gid=45&Itemid=26
\4\ CSI: Mississippi, A case study in expert testimony gone
horribly wrong, http://www.reason.com/news/show/122458.html
\5\ Reason's Reporting on Steven Hayne and Mississippi's Criminal
Forensics System, http://www.reason.com/news/show/131242.html
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When Forensic Medicine is practiced as it should be--thoughtfully,
completely, accurately, and impartially--everyone benefits. The
scientific foundation of medicine is unquestioned. Medicine fought some
battles similar to those pointed out in The NRC report at the same
point in the last century with end result being a revolution in medical
education and practice.\6\,\7\ The net result was enhanced
confidence in how the science was applied. The other forensic
disciplines are on a similar road to ours but at several different
points on their journeys. I think that, in general, the scientific
underpinnings are there but certainly the disciplines would benefit
from a more formal structured review. Look at it this way, a race car
driver can be incredibly proficient on the track. The net result of the
NRC report is that the same racing champion now has to go back and get
a driver's license to document that they can in fact do what they
already do so well.
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\6\ The Flexner Report and the Standardization of American Medical
Education, http://jama.ama-assn.org/cgi/content/full/291/17/2139
\7\Flexner Report . . . Birth Of Modern Medical Education, http://
www.medicinenet.com/script/main/art.asp?articlekey=8795
---------------------------------------------------------------------------
All the efforts to improve medicolegal death investigation are
designed to enhance service delivery to those who rely on the results
of the forensic autopsy. In addition to the obvious impact Forensic
Pathology has on the justice system, Medical Examiners have important
and sometimes under-recognized duties in public health, medical
research, and homeland security/mass disaster preparedness. Recognition
of potentially infectious diseases from the performance of the autopsy
may assist to minimize illness and death. Injuries found at autopsy
were a large part of the development of automotive seatbelts and
airbags. By studying sudden deaths, certain commonalities may be found
and medical science advanced. Our understanding of many deaths,
including those resulting from violence, can protect the living, for
example by identifying inherited diseases or dangerous drug
combinations. In the arena of disaster preparedness, the Medical
Examiner is responsible for the medical investigation in mass fatality
incidents, including identification of victims and the determination of
the cause and manner of death--the Medical Examiner makes the ultimate
determination if a death was, in fact, a homicide. Another area in
which the Medical Examiner's contributions may not be fully appreciated
is one of the most significant--as ``family physicians to the
bereaved'' and providing closure to untold numbers of surviving family
members.
Quality is a goal, not a destination; as such one of the hallmarks
of any good lab is CQI--continuous quality improvement. NAME concurs
with the NRC (see recommendation #2) that such quality is essential. As
part of the NAME accreditation, an office has to have a quality
assurance program. Benchmarks of that quality were demanded by the NRC
report--certification and accreditation.
As physicians, Medical Examiners are well familiar with the
necessities of personal qualification, to include licensure and medical
specialty board certification. In 1933, American Board of Medical
Specialties (ABMS) began medical specialty certification. Their motto
says it all: ``Higher standards. Better care.''
Nearly 85 percent of all licensed physicians in the
United States are certified by at least one ABMS Member Board.
Certification by an ABMS Member Board is widely
recognized as the gold standard in assessing physician
qualification. Health care institutions, insurers, physicians
and patients use ABMS Member Board certification status as an
essential tool to judge that a physician has the knowledge,
experience and skills to provide quality health care within a
given specialty.\8\
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\8\ ABMS FACT SHEET, http://www.abms.org/
News-and-Events/Media-Newsroom/pdf/
ABMS-Fact-sheet.pdf
Pathologists have been certified in the sub-specialty of Forensic
Pathology by the ABMS for the past 50 yrs. NAME will only recognize a
physician as a Forensic Pathologist if they are certified in Forensic
Pathology by the ABMS. Of the full members of NAME, 85 percent have
their specialty boards and 75 percent have their sub-specialty
boards.\9\
---------------------------------------------------------------------------
\9\ R. Hanzlick & V. Weedn/National Association of Medical
Examiners
---------------------------------------------------------------------------
Just as we believe individuals should have certain basic
credentials, so too should lab systems. NAME pioneered the
accreditation of medicolegal death investigation systems, commencing
formally in 1975. It has accredited offices in cities all over the
United States (such Atlanta, Miami, Los Angeles, and Houston); in State
systems (New Mexico and Georgia), and other nations (Singapore). We do
have a way to go yet, at present, only 49 Medical examiner Offices/
systems are accredited with another 11 in progress.\10\ Regardless, the
recommendation that ``All medical examiner offices should be
accredited'' \11\ is a good one. In addition, targeting limited
available funds (especially given the present budget constraints) is a
good carrot to encourage compliance: ``All federal funding should be
restricted to accredited offices . . . or [those] that demonstrate
significant and measurable progress in achieving accreditation within
prescribed deadlines.'' \12\
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\10\ National Association of Medical Examiners
\11\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
\12\ Ibid.
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Forensic pathologists are strong proponents of education and
research. In addition to attaining basic qualifications, in order to
maintain licensure physicians are required to undergo continuing
education, attaining a specific number of hours of training annually
(another general NRC recommendation). NAME holds two meetings each year
and the AAFS one in order to provide the latest forensic medical
advances to attendees from all medical specialties. The American
Journal of Forensic Medicine and Pathology, the official publication of
NAME is the oldest professional publication dedicated exclusively to
the science of medicolegal death investigation. The AAFS' Journal of
Forensic Sciences is a multi-disciplinary which includes pathology/
biology. These and other specialty journals present the latest advances
in the field, however, sorely needed ongoing research has been
difficult to fund. I am personally involved in studies in the field of
child abuse and have to rely on the generosity of one of my community's
non-profit hospitals to conduct tests that would otherwise go undone.
The NRC call ``. . . to support research, education, and training in
forensic pathology . . .'' \13\ must be heeded if we are to keep pace
with the ever advancing field of clinical medicine and other scientific
disciplines. Only by making Forensic Pathology a continuously
intellectually challenging discipline can we attract the best and
brightest to the field in order to make that promise of a brighter
future a reality. Guidance is needed, as indicated in the
recommendation that a medicolegal death investigation Scientific
Working Group (SWG) to ``. . . develop and promote standards for best
practices, administration, staffing, education, training, and
continuing education for competent death scene investigation and
postmortem examinations,'' \14\ to include new technologies. Directed
group efforts have produced vital information to provide high quality
death investigation at ``every scene, every time.'' \15\ Similarly,
training curricula targeted to the most difficult of death scenes,
those involving infants\16\ have sought uniformity to the investigation
of these tragic cases.
---------------------------------------------------------------------------
\13\ Ibid.
\14\ Ibid.
\15\ Death Investigation: A guide for the Scene Investigator,
http://www.ncjrs.org/pdffiles/167568.pdf
\16\ Sudden, unexplained Infant death Investigation Curriculum
Guide, http://www.cdc.gov/SIDS/PDF/508SUIDIGuidelinesSingles.pdf
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One of the more controversial among the NRC findings would be the
conversion to a nation-wide Medical Examiner system, replacing the
existing political office of coroner present in many jurisdictions.
Professionalization death investigation has been proposed by the same
National Academies--most recently in 2003 through the Institute of
Medicine,\17\ but also a little further back by the in 1928\18\ and
again in 1932.\19\ Perhaps it isn't surprising to see that change is
slow to come, after all what's 80 years against an elected office
dating to the 900's and which made its comeback in 1194!\20\ Those who
live in the past are destined to remain there. In that context, ``the
goal of replacing and eventually eliminating existing coroner systems''
\21\ can be seen as an attempt to improve a presently ``adequately''
functioning system. We must recognize that the mission of the
medicolegal investigation of death has changed over the years. What
used to be considered primarily a function of the justice system (be it
criminal or civil) is now much, much more: ``The role of medical
examiners and coroners has evolved . . . to a broader involvement that
now significantly benefits the public safety, medical, and public
health communities. It is foreseeable that the public health role of
medical examiners and coroners may continue to grow and that, perhaps
in the not too distant future, public health impact will surpass
criminal justice as the major focus of medicolegal death investigation
in the United States.'' \22\ We can do better, but in order to do so,
we must first understand the issue.
---------------------------------------------------------------------------
\17\ National Research Council. Bulletin of the National Research
Council, No. 64: The Coroner and the Medical Examiner. Washington DC:
National Research Council;1928.
\18\ Institute of Medicine. Medicolegal Death Investigation System:
Workshop Summary. Washington DC: National Academy of Sciences; 2003.
\19\ National Research Council. Bulletin of the National Research
Council, No. 87: Possibilities and Need for Development of Legal
Medicine in the United States. Washington DC: National Research
Council; 1932.
\20\ CROWNER: Origins of the Office of Coroner, Prof. Bernard
Knight, CBE, http://www.britannia.com/history/coroner1.html
\21\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
\22\ Medical examiners, coroners, & public health: a review &
update, Arch Path Lab Med. 2006 Sep; 130(9):1274-82.
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Typically death investigation is handled at the State or usually
local level. No two systems are the same, even though many are similar.
Of the 3,137 U.S. counties, roughly one-third (960) are true Medical
Examiner counties without Coroners. These fall into four basic models:
true State Medical Examiner (19 states--697 counties), pure County
Medical Examiner (two states--98 counties), pure District (Regional)
Medical Examiner (one state--67 counties), and sporadic (mixed) Medical
Examiner (14 states--98 counties).\23\ One problem is terminology--for
example some states use the term ``medical examiner'' but do not
require that person to be a pathologist. In short, in order to fix this
one part of the overall ``forensic system,'' significant restructuring
of operations and local, State, and federal laws would be required.
---------------------------------------------------------------------------
\23\ R. Hanzlick & V. Weedn/National Association of Medical
Examiners
---------------------------------------------------------------------------
In common usage, the terms Medical Examiner and Coroner are used
interchangeably by many. In reality, there is a world of difference. A
Medical Examiner in the purest sense is a physician, who after
completing medical school continues training four or five more years in
the field of General (also known as ``Hospital'') Pathology. Following
that, are one to two years of specialized subject matter training in
Forensic pathology. Following that are an intensive three day written
and practical board examination in General Pathology followed by a one-
day exam in Forensic Pathology. Compare that with the basic
qualifications of the coroner, which are election to the office, often
without any medical background or training at all. Their medical
education is either on-the-job or yearly seminars on selected topics. I
ask you--should the unfortunate instance arise, whom would you prefer
perform this most important medicolegal examination on your loved one
and then to testify about it in court? Who should be in charge of that
death investigation system? With all due respect and with no offense
intended, I do not believe a cab driver should be directing brain
surgery. NAME agrees with the NRC that ``All medicolegal autopsies
should be performed or supervised by a board certified forensic
pathologist.'' \24\ As of now, there are approximately 245 titular or
de facto chief medical examiners in the U.S. In reality, only 160 of
those meet NAME's definition of a Forensic Pathologist.\25\ There are
only 400 active, full-time practicing Forensic Pathologists in the
U.S.\26\ In 2008 at the 126 Medical schools in the U.S. and 8,589
Medical Training Programs (representing 141 specialties) and 18,372 new
medical students, only 37 new physicians entered the field of Forensic
Pathology.\27\
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\24\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
\25\ R. Hanzlick & V. Weedn/National Association of Medical
Examiners
\26\ Ibid.
\27\ R. Hanzlick, AAFS Pathology/Biology Annual Luncheon, from
JAMA, September 10, 2008.
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Personally, I have worked with some excellent coroners who were
dedicated and diligent. I suggest we not throw the baby out with the
bath water. It is obvious that there insufficient Medical Examiners now
and for the near-term future to simply flip a switch off on the Coroner
system. Working with appropriate stakeholders, I would propose we roll
the present functions of the traditional County Coroner into those of
the Medical Examiner's office and utilize these already functioning
professionals as lay investigators within that Medical Examiner system.
This has the advantage of reduced costs and more rapid implementation.
Obviously, those directly involved would have to have buy-in.
In order to achieve the goal of timely delivery of the highest
quality forensic service to our citizens, we must have sufficient
resources to make sure it happens. We must increase the numbers of
trained Forensic Pathologists (and all other forensic practitioners)
and strive for uniformity in the process of death investigation.
Estimates indicate that twice the existing number of Forensic
Pathologists would be needed to fully staff a true Medical Examiner
system across the entire country. The NRC indicated that ``Congress
should appropriate resources to . . . support research, education, and
training in forensic pathology.'' \28\ If we want more people in the
field, we need to recruit them early and retain them. Toward that end,
the report made a bold proposal, that ``. . . medical student loan
forgiveness and/or fellowship support, should be made available to
pathology residents who choose forensic pathology as their specialty.''
\29\ As someone over twenty one years out of medical school and with my
oldest child graduating college and my second starting, I am proud to
report that they have no outstanding student loans--but that their
father could say the same!
---------------------------------------------------------------------------
\28\ Ibid.
\29\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
---------------------------------------------------------------------------
In addition to the staffing issues, conversion to a nationwide
Medical Examiner system will be expensive, as will be implementation of
all the ``forensics system'' improvements called for by the NRC.
``Funds are needed to build regional medical examiner offices, secure
necessary equipment, improve administration, and ensure the education,
training, and staffing of medical examiner offices. Funding could also
be used to help current medical examiner systems modernize their
facilities to meet current Centers for Disease Control and Prevention-
recommended autopsy safety requirements.'' \30\ As the panel's charge
did not include budgetary issues, the inconvenient ``how to pay for
it'' was left out of the mix.
---------------------------------------------------------------------------
\30\ Ibid.
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Independence is also an important consideration. As my regular job
falls under the umbrella of a law enforcement agency (the Georgia
Bureau of Investigation), some might see that I have a pro-police bias.
In reality, as I have testified from the stand many times before, I am
neither pro-prosecution nor pro-defense; I am pro-truth. Within my
agency, we are operationally independent, as it should be. I have
worked in four different models of death investigation administration:
private contractor, university employee, independent State agency, and
law enforcement agency. I have found the best support I have ever had
in the latter system. That those within law enforcement (as in the
courts) would be interested in the results of my examinations is hardly
surprising. Truth be told, I have never dealt with any law enforcement
officer who wanted me to force a call or modify an opinion to suit some
clandestine purpose. Quite the contrary, my experience has been that
those police agencies who rely on my reports to determine if a case
should be further scrutinized are understaffed and underfunded and are
looking for guidance into how to best manage their own scarce
investigative resources.
As for the science, an important distinction should be made between
conventional science and forensic science. Ultimately, in the latter
case the data must be available for courtroom presentation. As such,
what might be considered intra-disciplinary differences of opinion in
the interpretation of test results take on a whole new light. The
objective forensic observer must not only perform the testing neutrally
but must also report it likewise. Australia has already established
(and revised five times) Guidelines for Expert Witnesses in Proceedings
in the Federal Court of Australia.\31\ The intent is to make the expert
an impartial finder of scientific fact and to impartially report those
findings and their resultant opinions to the court. I believe that
impartiality and fairness are essential, test results should be just
that--good or bad for whichever side, they should be solidly based and
then should be admitted as a matter of course in accordance with
procedures. I remember the day when DNA evidence was challenged almost
incessantly and now a case is almost deemed questionable if there isn't
DNA evidence. The good folks at the Innocence Project have show first-
hand how valuable good forensic evidence can be--for either side in our
adversarial legal system.
---------------------------------------------------------------------------
\31\ http://www.fedcourt.gov.au/how/prac-direction.html
---------------------------------------------------------------------------
The NRC was wise in recognizing that none of their goals, however
well-intentioned, can come about overnight. We have serious
jurisdictional and legal challenges to overcome. ``This requirement
should take effect within a timeframe to be established . . .,
following consultation with governing State institutions.'' \32\ It
might be tempting to find a quick fix to the issue of oversight for the
forensic sciences by placing it under existing entity. I do not believe
that is in the spirit of what the NAS report called for:
---------------------------------------------------------------------------
\32\ Ibid.
``The forensic science system, encompassing both research and
practice, has serious problems that can only be addressed by a
national commitment to overhaul the current structure that
supports the forensic science community in this country. This
can only be done with effective leadership at the highest
levels of both Federal and State governments, pursuant to
national standards, and with a significant infusion of federal
funds . . .. What is needed to support and oversee the forensic
science community is a new, strong, and independent entity that
could take on the tasks that would be assigned to it in a
manner that is as objective and free of bias as possible-one
with no ties to the past and with the authority and resources
to implement a fresh agenda.'' \33\
---------------------------------------------------------------------------
\33\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
I do not think it in our best interests to try to ``add on'' to an
existing structure, with its own extant biases and entrenched
operational protocols. Such an institutionalized mindset would not seem
to provide us the optimal chance to create a better way. The NRC report
called for a new, independent entity for a reason--past experience. We
have an opportunity to learn from past mistakes and to emulate our
successes as we move forward. If we are to take home the messages of
this NAS report, we should not cherry pick what we want to hear and
disregard the parts we think we might do better without. This is one of
those rare times in life where we have the opportunity to get it right
from the start as we follow a new, better path armed with the
experiences that will ensure our best chances for success.
As for an independent model, there exists an independent National
Institute of Forensic Science (NIFS)\34\ in Australia. The NIFS core
functions include:\35\
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\34\ http://www.nifs.com.au/
\35\ http://www.nifs.com.au/NIFS/
NIFS-frame.html?about.asp&1
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Sponsor and support research in forensic science;
Advise on and assist with the development and
coordination of forensic science services;
Gather and exchange forensic information;
Support, coordinate and conduct training programs in
forensic science; and
Conduct relevant quality assurance programs.
Additional present and future activities of NIFS include:\36\
---------------------------------------------------------------------------
\36\ Ibid.
---------------------------------------------------------------------------
Raising the profile of forensic science; and
Constructive and accountable resource management.
Created in 1991 as a National Common Police Service, the agency
governance includes a Board of Control (comprised of three Police
Commissioners, three Forensic Laboratory Directors, and a distinguished
University Provost) and a Panel of Advisors (scientists, police, legal
practitioners, and medical practitioners). The multi-disciplinary
nature of their directorate should not be missed, particularly the law
enforcement and legal communities shoulder-to-shoulder with the
scientific and medical; ``. . . diversity makes for a rich tapestry,
and we must understand that all the threads of the tapestry are equal
in value no matter what their color.'' \37\ I am not well-acquainted
with the existing NIFS but it certainly does sound as though it
addresses many of the issues brought up in the NRC report. I suggest we
might well benefit from more detailed analysis of this existing model
as we venture to build our better mouse trap.
---------------------------------------------------------------------------
\37\ Maya Angelou
---------------------------------------------------------------------------
As for the National Institute of Science and Technology (NIST)
specifically, I feel that there are their continued efforts to improve
forensics will remain beneficial. In fact, the NRC report calls for
their involvement in setting accreditation and certification
standards.\38\ While NIST clearly has a demonstrated record of
unsurpassed technical in many scientific areas, it lacks an established
history with regard to the complexities and intricacies of the
interaction of law enforcement, legal, and governmental issues so vital
to operations within the forensics environment. The day-to-day
application of forensics means working with less than optimal evidence
and trying to obtain the best possible result, then reporting to the
appropriate entities. The NIST expertise in laboratory standards does
not translate well into the larger issues of accreditation &
certification implementation, practitioner professionalism and ethics,
or administrative areas. Nor, quite honestly, is there likely to be an
easy buy-in from the forensics system as a whole given the shortcomings
enumerated.
---------------------------------------------------------------------------
\38\ Strengthening Forensic Science in the United States: A Path
Forward, The National Academies Press, Washington, D.C., February 2009.
---------------------------------------------------------------------------
I look forward to working with all those with a sincere interest in
providing timely delivery of the highest quality forensic science
services to all. With continued effort, the NAS report is a significant
step in that direction. In closing, I believe that the Path Forward for
forensic sciences, as outlined in the national Academy of Sciences
report is best served by that old adage, ``good enough seldom is.'' The
American people deserve better.
Biography for James C. Upshaw Downs
James Claude Upshaw (``Jamie'') Downs, M.D., is coastal Georgia's
first Regional Medical Examiner.
He has been continuously employed as a Medical Examiner since 1989
and was Alabama's State Forensics Director and Chief Medical Examiner
from 1998 to 2002. Dr. Downs has lectured extensively in the field of
forensic pathology and has presented at numerous national and
international meetings in the fields of anatomic and forensic
pathology. He is a consultant to the FBI Behavioral Science Unit in
Quantico, Virginia, having authored four chapters in their manual on
Managing Death Investigation and was primary author of the FBI's
acclaimed Forensic Investigator's Trauma Atlas. He has authored several
books and chapters in the field of forensic pathology and child abuse,
including Abusive Head Trauma in Infants and Children: A Medical, Legal
& Forensic Reference with CD-ROM and Child Fatality Review: A Clinical
Guide and A Color Atlas (in press). He has lectured regularly at the
National Forensic Academy and at the FBI's National Academy. Areas of
special interest include child abuse and police use of force.
Professional activities have included service on numerous professional
boards and committees.
He has testified in numerous State and federal courts, as well as
before committees of the United States Senate and House of
Representatives.
Dr. Downs is on the Board of Advisors for the Law Enforcement
Innovation Center at the University of Tennessee, the Board of
Directors of the National Association of Medical Examiners, the Board
of Directors of the Consortium of Forensic Science Organizations (Vice
Chair), and the National Forensic Science Technology Center. He also
serves on the Forensic Committee of the International Association of
Chiefs of Police.
Chair Wu. Thank you very much, Dr. Downs.
Mr. Neufeld, please proceed.
STATEMENT OF MR. PETER J. NEUFELD, CO-FOUNDER AND CO-DIRECTOR,
THE INNOCENCE PROJECT
Mr. Neufeld. Good morning, Mr. Chair and Members of the
Committee. My name is Peter Neufeld. I am the Co-Founder and
Co-Director of the Innocence Project, and certainly I will be
the first to admit, if it wasn't for DNA, I wouldn't be here
and there would be no Innocence Project because it was DNA that
was responsible for the exoneration of 233 men and women in
this country who were wrongly convicted. Unfortunately, our
research into these cases suggests that 50 percent of them were
wrongly convicted because of the use of either an unvalidated
or improper forensic science testimony at their original
trials, and it is our familiarity with DNA which leads me to
take issue with some of the remarks made by some of the other
speakers.
The underlying success and virtue of DNA and its robustness
does not come primarily from the fact that the FBI or NIJ or
NIST worked on tweaking it to make it more user friendly in the
crime labs in America. The underlying robustness of DNA comes
from the fact that for 20 years before it was ever used in a
courtroom, DNA was being broadly researched--applied research,
basic research, for research laboratories, for medical
applications of DNA, and that is the uniqueness of DNA, if you
will, with respect to these other forensic disciplines that
come under such harsh criticism in the NAS report, that these
other disciplines were created first and foremost for law
enforcement and so they never went through that kind of basic
or applied research that DNA enjoyed.
And for our clients, our exonerees, the findings of the NAS
report are not a total surprise. We knew about this anecdotally
but fortunately it was the NAS report that looked at it
methodically and scientifically and arrived at the conclusions
that are reached. And one of the key conclusions that are
reached is that ``With the exception of nuclear DNA analysis,
however, no forensic method has been rigorously shown to have
the capacity to consistently, and with a high degree of
certainty, demonstrate a connection between evidence and a
specific individual or source.'' That is the finding of the
report, and to us, that is not a surprise because so many of
our clients were convicted because of less than reliable, or
less than validated, forensic science. I hold out Kennedy
Brewer as an example. He is mentioned in the written testimony.
Kennedy Brewer was convicted because a bite mark expert in
Mississippi said insect marks on this little three-year-old
girl's body were not only bite marks but were bite marks that
came from Kennedy Brewer to the exclusion of everybody on the
planet. Years later, even though this man was sentenced to
death for a crime he didn't convict, DNA on the semen recovered
from her not only exonerated him but identified the real
perpetrator, a man named Justin Albert Johnson. And the sad
thing in this case is that 18 months earlier another three-
year-old girl was killed in the same community and once again
the same bite mark expert said that someone named Lavon Brooks
was responsible for those bite marks and therefore must have
been responsible for that murder. Justin Albert Johnson was
nearly suspect in that other case, but because of the bite mark
evidence everybody ignored Mr. Johnson and focused on the wrong
person.
Every time the police department or the forensic scientists
focus on the wrong person, the real bad guy is still out there,
as in this case, committing other horrible crimes. In this
case, it was a rape and murder of a three-year-old girl. What
we found in the 230 exonerations are 100 instances where the
real perpetrator was ultimately identified and during those
intervening years the real perpetrator committed many serious
murders and violent rapes. So when we are talking about making
reforms here, we are talking about not only helping the wrongly
convicted, we are helping improve public safety for all
Americans. And when people say oh, this is old science, they
should know that we tried to do an informal survey here and we
found out that there are still 200 to 300 of these bite mark
experts in the last four to five years who were testifying in
these kinds of cases. Look at Brendan Mayfield and look at the
language in this report on fingerprint examination, and what it
says in the report is that the ACE-V [Analysis, Comparison,
Evaluation, and Verification] does not guard against bias, is
too broad to ensure repeatability and transparency, and does
not guarantee that two analysts following it will obtain the
same results. Well, no wonder two FBI agents in the Brendan
Mayfield case swore on affidavits that they were 100 percent
certain that the fingerprints on the bombing device bag in
Madrid came from this attorney named Mayfield but they were 100
percent wrong.
The problem is, when you look at the language in the NAS
report, if you were not looking at forensic science but instead
you were looking at medicine, you would outlaw those products
or you would pull them from the shelf, but historically we have
always had this double standard for forensic science on the one
hand and medical science on the other, and that is what the NAS
report set out to address, to treat it with the same kind of
rigor, and wherever you decide to place this thing, Mr. Chair
and Members of the Committee, the key principles are there has
to be an aggressive research agenda, something that has always
been lacking in forensic science. There has to be an oversight
entity concerned with validity and reliability, something that
has always been lacking in forensic science. There has to be
some government oversight of quality assurance, of
accreditation, of certification. If those recommendations are
implemented, you will have science-based prosecutions, you will
have fewer wrongful convictions and you will have a robust
forensic science industry that becomes an incubator for
innovation and technology, not just in the United States but
throughout the world. Thank you.
[The prepared statement of Mr. Neufeld follows:]
Prepared Statement of Peter J. Neufeld
Thank you Chairman Gordon, Ranking Member Hall, and Members of the
Committee. My name is Peter Neufeld and I am the Co-Director of the
Innocence Project, affiliated with the Cardozo School of Law, which Co-
Director Barry C. Scheck and I founded in 1992. The project is a
national litigation and public policy organization dedicated to
exonerating wrongfully convicted people through DNA testing and
reforming the criminal justice system to prevent future miscarriages of
justice.
Without the development of DNA testing, there would be no Innocence
Project; 233 factually innocent Americans would remain behind bars, and
17 of those 233 could have been executed. Our research into the causes
of wrongful conviction reveals that police and prosecutors' reliance on
unvalidated and/or improper forensics was the second greatest
contributing factor to those wrongful convictions. Our analysis
regarding wrongful convictions involving unvalidated or improper
forensic science that were later overturned through DNA testing is
attached to this testimony.
Given what those DNA exonerations have taught us about the
shortcomings of forensic science, the Innocence Project is extremely
thankful to Congress for authorizing and appropriating funds to
establish the National Academies of Science Committee on Identifying
the Needs of the Forensic Science Community. By convening some of the
very best minds in the Nation to focus on the needs and shortcomings of
forensic practice and how to remedy them, the Nation has been provided
with both an alarm regarding the serious shortcomings that exist
regarding forensic evidence, and a roadmap to addressing the major
improvements in the forensic system necessary to ensure the most
accurate evidence--and therefore justice--possible.
I am also extremely pleased to participate in this hearing
reviewing the recommendations and conclusions of the National
Academies' report Strengthening Forensic Science in the United States:
A Path Forward. Thank you for the invitation to testify before you
today.
While the Innocence Project is known for its association with DNA
evidence, we are forever cognizant of the importance of non-DNA
forensic evidence to determinations of justice. Our criminal justice
system relies heavily on non-DNA forensic techniques. The Bureau of
Justice Statistics' 2005 Census of Publicly Funded Forensic Crime
Laboratories reported that new lab requests for DNA work consist of
only approximately three percent of all of all new requests for lab
work.
As our review of DNA exonerations shows, unvalidated and improper
forensics contributed to approximately 50 percent of wrongful
convictions overturned by DNA testing. In the DNA exonerations alone,
we have had wrongful convictions based on unvalidated or misapplied
serological analysis, microscopic hair comparisons, bite mark
comparisons, shoe print comparisons, fingerprint comparisons,\1\
forensic geology (soil comparison), fiber comparison, voice comparison,
and fingernail comparison,\2\ among the many forensic disciplines that
have produced these tragic miscarriages of justice in our courts. There
have even been a few innocents whose convictions relied, in part, on
shoddy DNA testing in the early years of its forensic application. It
comes as no surprise to us that the NAS concluded: ``With the exception
of nuclear DNA analysis, however, no forensic method has been
rigorously shown to have the capacity to consistently, and with a high
degree of certainty, demonstrate a connection between evidence and a
specific individual or source.'' \3\ The overarching problem has been
that all too frequently, these other forensic disciplines have been
improperly relied upon to connect our innocent clients to crime scene
evidence.
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\1\ Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March
2009, p. 8.
\2\ Ibid., p. 13.
\3\ Strengthening Forensic Science in the United States: A Path
Forward, Committee on Identifying the Needs of the Forensic Science
Community, The National Academies Press (2009), p. 5-5.
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Just as DNA exonerations reveal inherent shortcomings in other
forensic disciplines, the evolution and regulation of DNA in the
forensic setting (from basic research to crime lab and to casework)
contrast starkly with the near total absence of validation and
demonstrable reproducibility for many other forensic technologies. Long
before there was a national forensic DNA testing program, the National
Institutes of Health (NIH) and others funded and conducted extensive
and relevant basic research and followed it with applied research.
Scientists appreciated the challenge of transferring the technology
from research lab to clinical lab and from clinical lab to crime lab.
The forensic methods were validated for case work, and individual crime
labs further validated the kits and protocols for use in their own
laboratory settings.
In contrast to DNA, the vast majority of non-DNA forensic assays,
which have often been erroneously used to suggest an individual match,
have never been subjected to basic scientific research or federal
review. Moreover, as pointed out by the NAS, neither the FBI nor the
National Institute of Justice have, over the years, ``recognized, let
alone articulated, a need for change or a vision for achieving it.
Neither has full confidence of the larger forensic science community.
And because both are part of a prosecutorial department of the
government, they could be subject to subtle contextual biases that
should not be allowed to undercut the power of forensic science.'' \4\
Without a push for vigorous adherence to the scientific method,
innocent people have gone to prison or death row while the real
perpetrators remained at liberty to commit other violent crimes.
---------------------------------------------------------------------------
\4\ Ibid., p. S-12.
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The NAS report references several of the forensic disciplines which
have gone unregulated and without proper validation and reliability:
Hair Comparisons:
``No scientifically accepted statistics exist about the
frequency with which particular characteristics of hair are
distributed in the population. There appear to be no uniform
standards on the number of features on which hairs must agree
before an examiner may declare a ``match.'' \5\ The report
notes that along with the imprecision of microscopic hair
analysis, the ``problem of using imprecise reporting
terminology such as `associated with,' which is not clearly
defined and which can be misunderstood to imply
individualization.'' \6\ The committee found no scientific
support for the use of hair comparisons for individualization
in the absence of nuclear DNA. Microscopy and mtDNA analysis
can be used in tandem and may add to one another's value for
classifying a common source, but no studies have been performed
specifically to quantify the reliability of their joint use.''
\7\
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\5\ Ibid., p. 5-25.
\6\ Ibid., p. 5-26.
\7\ Ibid., p. 5-26.
Jimmy Bromgard spent 14.5 years in prison for the rape of an eight-
year-old girl that he did not commit. The semen found at the crime
scene could not be typed, so the forensic case against Bromgard came
down to the hairs found at the crime scene. The forensic expert, Arnold
Melnikoff, a hair examiner and Laboratory Manager of the State crime
lab in Montana, testified that the head and pubic hairs found at the
scene were indistinguishable from Bromgard's hair samples. He claimed
that there was a one in 100 chance of a head hair ``matching'' an
individual, and a one in 100 chance of a pubic hair ``matching''--and
then he multiplied these statistics to say that there was less than a
one in 10,000 chance that the hairs did not belong to Bromgard. This
damning testimony was also fraudulent: there has never been a standard
by which to statistically match hairs through microscopic inspection.
---------------------------------------------------------------------------
The criminalist took the impressive numbers out of thin air.
Bite mark Comparisons:
``Although the methods of collection of bite mark evidence
are relatively noncontroversial, there is considerable dispute
about the value and reliability of the collected data for
interpretation. Some of the key areas of dispute include the
accuracy of human skin as a reliable registration material for
bite marks, the uniqueness of human dentition, the techniques
used for analysis, and the role of examiner bias . . ..
Although the majority of forensic odontologists are satisfied
that bite marks can demonstrate sufficient detail for positive
identification, no scientific studies support this assessment,
and no large population studies have been conducted. In
numerous instances, experts diverge widely in their evaluations
of the same bite mark evidence, which has led to questioning of
the value and scientific objectivity of such evidence . . ..
Bite mark testimony has been criticized basically on the same
grounds as testimony by questioned document examiners and
microscopic hair examiners. The committee received no evidence
of an existing scientific basis for identifying an individual
to the exclusion of all others.'' \8\
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\8\ Ibid., p. 5-37.
Kennedy Brewer spent seven years on death row in Mississippi for the
murder of a three-year-old girl that he did not commit. An independent
examiner, forensic odontologist, Dr. Michael West, analyzed several
marks on the child's body that he testified were bite marks inflicted
by Brewer, and then only by his top two teeth. West said that ``within
reasonable medical certainty,'' Brewer's teeth caused the marks, and
then explained that ``reasonable medical certainty'' meant that Brewer
was the source of the marks. The ``bite marks'' turned out to be caused
by insects in the pond where the girl's body was discovered and by the
natural sloughing of skin a body experiences when left in the water for
---------------------------------------------------------------------------
several days.
Fingerprint Comparisons:
``ACE-V provides a broadly state framework for conducting
friction ridge analyses. However, this framework is not
specific enough to qualify as a validated method for this type
of analysis. ACE-V does not guard against bias; is too broad to
ensure repeatability and transparency; and does not guarantee
that two analysts following it will obtain the same results.\9\
Errors can occur with any judgment-based method, especially
when the factors that lead to the ultimate judgment are not
documented.\10\ As was the case for friction ridge analysis and
in contrast to the case for DNA analysis, the specific features
to be examined and compared between toolmarks cannot be
stipulated a priori.'' \11\
---------------------------------------------------------------------------
\9\ Ibid., p. 5-12.
\10\ Ibid., p. 5-13.
\11\ Ibid., p. 5-21.
Although not a DNA exoneration, Brandon Mayfield's case was referred to
in the NAS Committee's report as, ``surely signal caution against
simple, and unverified, assumptions about the reliability of
fingerprint evidence.'' \12\ Brandon Mayfield was arrested as a
material witness in the Madrid Bombings of March 2004. Several FBI
fingerprint experts ``matched'' his print to fingerprints lifted from a
plastic bag containing explosive material found at the crime scene.
Mayfield, a Portland Oregon lawyer, who had converted to Islam and
married an Arab woman, had his prints in the national database because
years earlier he had served in the U.S. armed forces. Mayfield's print
was one of 20 prints returned from a search of the national Automated
Fingerprint Identification System (AFIS) as being very similar to the
crime scene print. Following a further visual inspection of the 20
prints, two FBI fingerprint experts swore in affidavits that they were
100 percent certain that the crime scene prints belonged to Mayfield.
When the Spanish police ultimately arrested the real source of the
fingerprint, the FBI initially defended their ``mistake'' as the result
of poor digital image. Obviously, the two FBI experts could not have
been 100 percent certain if the image was poor. Several major
investigations followed, including one conducted by the Inspector
General of the Department of Justice.\13\
---------------------------------------------------------------------------
\12\ Ibid., p. 3-16.
\13\ Ibid., footnotes 75 and 76, which indicated that contextual
bias and confirmation bias played an important role in the
misidentification.
---------------------------------------------------------------------------
The NAS report revealed similar lapses in validation and
inappropriate associations in several other forensic disciplines:
Shoe Print Comparisons:
``[I]t is difficult to avoid biases in experience-based
judgments, especially in the absence of a feedback mechanism to
correct an erroneous judgment.\14\ [C]ritical questions that
should be addressed include the persistence of individual
characteristics, the rarity of certain characteristic types,
and the appropriate statistical standards to apply to the
significance of individual characteristics.'' \15\
---------------------------------------------------------------------------
\14\ Ibid., p. 5-17.
\15\ Ibid., p. 5-18.
Fiber Comparisons:
``Fiber examiners agree, however, that none of these
characteristics is suitable for individualizing fibers
(associating a fiber form a crime scene with one, and only one,
source) and that fiber evidence can be used only to associate a
given fiber with a class of fibers.'' \16\
---------------------------------------------------------------------------
\16\ Ibid., p. 5-26.
Other Pattern/Impression Evidence: Fingernail
---------------------------------------------------------------------------
Comparison, Voice Comparison, Forensic Geology:
``Although one might argue that those who perform the work
in laboratories that conduct hundreds or thousands of
evaluations of impression evidence develop useful experience
and judgment . . . the community simply does not have enough
data about the natural variability of those less frequent
impressions, absent the presence of a clear deformity or scar,
to infer whether the observed degree of similarity is
significant.\17\ Also, little if any research has been done to
address rare impression evidence. Much more research on these
matters is needed.'' \18\
---------------------------------------------------------------------------
\17\ Ibid., p. 5-17.
\18\ Ibid., p. 5-18.
The aforementioned disciplines all require further validation. The
Innocence Project agrees with the NAS report regarding what is needed:
``(1) information about whether or not the method can discriminate the
hypothesis from an alternative, and (2) assessment of the sources of
error and their consequences on the decisions returned by the method.''
\19\
---------------------------------------------------------------------------
\19\ Ibid., p. 4-2.
---------------------------------------------------------------------------
It is critical that we all understand the real world consequences
of the forensic problems I and the NAS have discussed. These were not
incidents reflective of one bad actor, or one wayward jurisdiction; our
review of the Nation's DNA exonerations showed that seventy-two
forensic analysts from 52 different labs, across 25 states had provided
testimony that was inappropriate and/or significantly exaggerated the
probative value of the evidence before the fact finder in either
reports or live courtroom testimony. According to the NAS Forensic
Committee's report, the shortcomings in education, training,
certification, accreditation, and standards for testing and testifying
that contributed to wrongful convictions in those cases threaten the
integrity of forensic results across virtually all non-DNA forensics.
It is important to recognize that these 233 individuals represent
just the tip of the iceberg. In the vast majority of cases DNA is
simply useless to indicate innocence or guilt--in fact, DNA is
estimated to be probative in only 10 percent of all murder cases, and a
far lower percentage of all criminal cases. What's more, in most cases
where convicted people seek our representation to use post-conviction
DNA testing to prove their innocence, we don't have the opportunity to
conduct a DNA test because the biological evidence has either been lost
or destroyed. And in some cases, when we have the evidence and testing
it can prove innocence, the state simply refuses to allow the test that
can indicate the truth.
DNA testing has become the gold standard in forensics because it is
science-based and tested. It was discovered through basic research and
later applied to clinical DNA diagnostics, developing under the same
scrutiny given to medical devices. So when it entered the courtroom,
there was already a tremendous body of literature in highly respected
scientific journals, amassed over a number of years, to support and
validate its accuracy. Subsequently, the National Research Council
twice convened some of the top scientists from leading research
universities to discuss not only the scientific application of DNA in
courts, but also to validate the statistical implications of the data
that was produced.
Non-DNA forensic assays have not been scientifically validated, and
there is no formal apparatus in place to do so for developing forensic
technology. Though the technology has changed over time, the sources of
human error, misinterpretation, and misconduct have not. Most of the
assays used in law enforcement have no other application; they were
developed for the purpose of investigation, prosecution and conviction
and took on a life of their own without being subjected to the rigors
of the scientific process. Essentially, the assays were simply accepted
as accurate. Many of these forensic disciplines--some of which are
experience-based rather than data-based--went online with little or no
scientific validation and inadequate assessments of their robustness
and reliability. No entity comparable to the Food and Drug
Administration ever scrutinized the forensic devices and assays, nor
were crime laboratories subject to mandatory accreditation and forensic
service practitioners subject to certification. Enforceable parameters
for interpretation of data, report writing, and courtroom testimony
have also never been developed.
While there is research and work that establishes what needs to be
done to improve various forensic practices, the fact is that no
existing government entity, nor the forensics community itself, has
been able to sufficiently muster the resources nor focus the attention
necessary to use the existing information as a launching pad to
comprehensively improve the integrity of non-DNA forensic evidence. The
NAS report is the first step--and a tremendous one--toward fully
establishing and acting upon what we already know. From the perspective
of justice and public safety, it is tragic that it has taken this long
to act on the desperate need to improve the quality of forensic
evidence. Given the clear and comprehensive message delivered by the
NAS on this subject, further delay would be unconscionable.
The report calls for Congress to act, strongly and swiftly. This is
because as I speak, many of these assays and technologies are being
used in investigations, prosecutions and convictions daily everywhere
in this country, despite their potential to mislead police,
prosecutors, judges and juries away from the real perpetrators of
crime. Although the conventional wisdom once stated that a sound
defense and cross-examination would enable courts to properly assess
the strength of forensic evidence, the Report unequivocally states and
the post-conviction DNA exoneration cases clearly demonstrate that
scientific understanding of judges, juries, defense lawyers and
prosecutors is wholly insufficient to substitute for true scientific
evaluation and methodology. It is beyond the capability of judges and
juries to accurately assess the minutiae of the fundamentals of science
behind each of the various specific forensic assays in order to
determine the truth in various cases, and it is an unfair and dangerous
burden for us to place on their shoulders. Indeed, the NAS report deems
that ``judicial review, by itself, will not cure the infirmities of the
forensic science community.'' \20\
---------------------------------------------------------------------------
\20\ Ibid., p. 3-20.
---------------------------------------------------------------------------
It is absolutely clear--and essential--that the validity of
forensic techniques be established ``upstream'' of the court, before
any particular piece of evidence is considered in the adjudicative
process. For our justice system to work properly, standards must be
developed and quality must be assured before the evidence is presented
to the courts--or even before police seek to consider the probative
value of such testing for determining the course of their
investigations. There is simply no substitute for requiring the
application of the scientific method to each forensic assay or
technology, as well as parameters for report writing and proper
testimony, as part of the formal system of vetting the scientific
evidence we allow in the courtroom.
The Innocence Project whole-heartedly supports the primary
recommendation of the National Academy of Sciences' report to create a
federal National Institute of Forensic Sciences. We believe that
federal oversight body must conduct research into the scientific
validity and reliability of forensic disciplines and set standards for
their use in the courtroom. A federal entity is needed to ensure that
we don't have 50 states operating under 50 definitions of ``science'';
forensic science in America needs one standard of science so we can
have one standard for justice. As Congress considers the establishment
of such an agency, there are several principles that it should adhere
to.
First, the National Institute of Forensic Sciences should focus on
three critical priorities: (1) basic research, (2) assessment of
validity and reliability, and (3) quality assurance, accreditation, and
certification. This body should identify research needs, establish
priorities, and precisely design criteria for identifying the validity
and reliability of various extant and developing forensic assays and
technologies. Then, using the data generated by research, this entity
should then undertake a comprehensive assessment of the validity and
reliability of each assay and technology to develop standards by which
the practitioners must adhere and under which their reporting and court
room testimony must operate. Given NIST's reputation as a highly
respected and admired standard-setting agency, as well as its history
of employing Nobel prize-winning scientists who conduct superb research
and translate basic science to applied commercial standards and its
tradition of objective, independent, science-grounded work, we agree
with the NAS report that NIST would make a sensible partner for setting
those standards. The Innocence Project also believes strongly that this
body must play a central role in accreditation and certification.
Laboratories that seek accreditation must have quality controls and
quality assurance programs to ensure their forensic product is ready
for the courtroom. Individual practitioners must meet certain training
and education requirements, continuing education, proficiency testing,
and parameters for data interpretation, report writing and testimony.
Second, to ensure this agency's objectivity and scientific
integrity, and to prevent any real or perceived institutional biases or
conflicts of interest, it is paramount that NIFS be a non-partisan,
independent agency, with its basic and applied research products and
standards grounded in the best traditions of the scientific method. We
agree with the NAS report that ``Governance must be strong enough--and
independent enough--to identify the limitations of forensic science
methodologies and must be well connected with the Nation's scientific
research base in order to affect meaningful advances in forensic
science practices.'' \21\
---------------------------------------------------------------------------
\21\ Ibid., p. 2-19.
---------------------------------------------------------------------------
Third, this entity will coordinate all existing and future federal
functions, programs, and research related to the forensic sciences and
forensic evidence.
Fourth, in order for this entity to be successful, forensic
oversight must be obligatory and an effective mechanism of enforcement
of these standards must exist. After having been given the proper
direction and opportunity to comply, noncompliant laboratories or
practitioners should lose their ability to participate in the business.
These corrective actions can be overseen in conjunction with other
government agencies; however enforcement powers must be under the
command and control of the NIFS.
Fifth, this entity must be a permanent program in order to ensure
ongoing evaluation and review of current and developing forensic
science techniques, technologies, assays, and devices; and continued
government leadership, both publicly and through private industry, in
the research and development of improved technology with an eye toward
future economic investments that benefit the public good and the
administration of justice.
Finally, Congress must allocate adequate resources to the NIFS so
that it can undertake its critical work quickly, effectively, and
completely, and so its mandates can be executed in full.
Our work has shown the catastrophic consequences of such a lack of
research, standards, and oversight. It is clear that the Nation's
forensic science community is ready and willing to work with the
Federal Government, law enforcement, and other scientists to ensure a
brighter future for forensic science. Science-based forensic standards
and oversight will increase the accuracy of criminal investigations,
strengthen criminal prosecutions, protect the innocent and the victims,
and enable law enforcement to consistently focus its resources not on
innocent suspects, but on the true perpetrators of crimes. For as the
Nation's post-conviction DNA exonerations have proven all too clearly,
when the system is focused on an innocent suspect, defendant or
convict, the real perpetrator remains free to commit other crimes.\22\
---------------------------------------------------------------------------
\22\ In the wake DNA exonerations of the wrongfully convicted, that
same DNA analysis has enabled us to identify 100 of the true suspects
and/or perpetrators of those crimes.
---------------------------------------------------------------------------
The investment of time, effort and resources necessary to deliver
us from our false reliance on some forensic assays will pay tremendous
dividends in terms of time, effort and resources not wasted by virtue
of this false reliance. In short, it will make criminal investigations,
prosecutions and convictions more accurate, and our public more safe--
and perhaps most importantly, justice more assured.
We have been directed toward an irrefutable and unprecedented
opportunity to significantly improve the administration of criminal
justice in the United States. By evaluating and strengthening forensic
science techniques with the strong, well-funded, and well-staffed
entity we described, we can create a formal system to ensure that
criminal justice is accurately conducted and justly performed. The
research and development of both existing and new forensic disciplines
will create new industries and jobs in the U.S., just as the
development of DNA technologies and their applications has done. With
your support, we will not only significantly enhance the quality of
justice in the United States, but we will also minimize the possibility
that tragedies like that endured by the Nation's 233 (and counting)
exonerees and their families will needlessly be repeated time and
again.
Biography for Peter J. Neufeld
Peter Neufeld co-founded and co-directs The Innocence Project, an
independent non-profit affiliated with the Benjamin N. Cardozo School
of Law. He is also a partner in the civil rights law firm Cochran
Neufeld & Scheck, LLP.
The Innocence Project began in 1992 as a clinical program with the
single focus of exonerating the wrongfully convicted. In April, 2007,
the Project celebrated the 200th post conviction DNA exoneration. The
work has expanded to bring substantive reform to the system responsible
for unjust imprisonment, with particular attention to improving
eyewitness identification procedures, requiring the recording of police
interrogations, and enhancing the reliability of forensic science. The
Project has also contributed to a significant shift in the national
debate on the death penalty. Entrenched positions predicated on
politics and morality have given way to an emerging consensus on the
relationship between erroneous outcomes and irreversible punishment.
Peter's law firm represents victims of constitutional violations in
which the cases have the potential to produce institutional reform. The
firm's clients have included:
Abner Louima, the Haitian-American tortured by police
officers in a precinct bathroom. The civil case was the first
in the Nation to hold a police union accountable for acts of
brutality inflicted by its members.
Two of the four young black and latino athletes
wounded by New Jersey State troopers for the crime of ``DWB''--
driving while black. The case became instrumental in raising
the Nation's consciousness about racial profiling.
Thomas Pizzuto, who entered Nassau County Jail on a
90-day sentence for a Vehicle & Traffic Law violation but
received a death sentence at the hands of correction officers.
His death precipitated a federal investigation that led to a
Department of Justice consent decree to implement much needed
reform at the county jail.
Peter has litigated and taught extensively in both the ``hard'' and
behavioral forensic sciences. Before co-founding the Innocence Project
at Cardozo Law School, he taught trial advocacy at Fordham University
Law School and was a staff attorney with the Legal Aid Society of New
York. For the last decade he has served on the New York State
Commission on Forensic Science, with responsibility for regulating all
State and local crime laboratories. He has published more than a dozen
articles on science and law, and is the co-author, along with Jim Dwyer
and Barry Scheck of the book entitled Actual Innocence: When Justice
Goes Wrong And How To Make It Right.
A 1972 graduate of the University of Wisconsin, Peter Neufeld
received his law degree in 1975 from New York University School of Law.
You can read about the Innocence Project at www.innocenceproject.org.
Discussion
Chair Wu. Thank you very, Mr. Neufeld.
Before we get--we are now in the question and comment
period of the hearing, and the Chair first recognizes himself
for five minutes.
Before we get to other crucial issues like level of
support, level of funding, whether to create a new independent
agency or to perhaps approach that in a different way, and
transition issues, it seems to me there may be some
disagreement or at least difference in emphasis among the
witnesses about the current state of forensic science. When I
hit my first memo on this topic, I have to say that I was a
little bit stunned. One of the sentences in that memo said with
the exception of DNA matching, the commonly used forensic tests
such as fingerprint analysis, ballistic testing, hair matching,
pattern recognition and paint matching are based more on
workers' experience than on rigorous scientific protocols. And
I had the same reaction to that sentence that I did when I was
visiting my local medical school and they were discussing
evidence-based medicine. I had a very brief exposure to medical
school in my training days and my first reaction was, gee, I
thought all the stuff you all did was evidence-based. It took
me a while to understand evidence-based medicine and what they
were getting at. Perhaps the panel for our edification could
discuss with me, or with us, your concerns about whether there
is a sound scientific basis for many of the tests that we
commonly rely on in our forensic testing, and I don't know if
we want to go from right to left, left to right, or whether any
of you want to proceed.
Mr. Neufeld, forgive me. I am reverting to my old Germanic
past. I pronounced your name Neufeld.
Mr. Neufeld. I appreciate it actually. Thank you. Very few
people do but that is the right pronunciation.
I am not a scientist and I am not----
Chair Wu. Your microphone.
Mr. Neufeld. I am not a scientist and I am not the best
person to answer your question, but these individuals who are
on this panel all have, obviously, their own subjective
experience and also their own special disciplines in the case
of some of them which they may or may not wish to defend. The
point of the National Academy report, however, is it is a blue-
ribbon body of some of the best minds, not just in the forensic
science community but in the hard sciences as opposed to, you
know, in the basic sciences, which are not represented in this
panel right now before you with the exception of the eminent
physician who is sitting to my right. And what I will say is,
it was their conclusion that it was lacking and we can't simply
ignore that conclusion that is based on a two-year study that
they did.
Chair Wu. Well, realizing that you are not a scientist,
perhaps we can come back to you at some point and you could
address either examples or analytically what would be different
if there were a scientific basis to some of the forensic work
that we do.
Dr. Downs, would you care to address this issue? Does this
make a difference or does it not, or is there a problem here?
Dr. Downs. Mr. Chair, I think it is a great question and
your model of evidence-based medicine I think is dead on. In
fact, in my written comments I address the whole source of
that, which was the Flexner Report from back at the turn of the
last century.
Chair Wu. And the question here is whether we are at a
similar inflection point for, if you will, a slightly different
profession just as the Flexner Report and the reforms of
American medical education made a significant difference. Is
there a need to do something that dramatic in this field at
this point in time?
Dr. Downs. I think for the sake of public competence that--
the analogy I use is a racecar driver. They can win
championships on the track. They have to go back now and get
their driver's license and prove that they can do what we
already know they can do very, very well, and I think there is
good science behind all of the testing that we do. The problem
is, we kind of got ahead of it and we never went back, because
as Mr. Neufeld correctly points out, it came through a
different venue. It came through law enforcement and the courts
never asked us for that scientific basis as a starting point.
We know it works.
Chair Wu. That analogy is very helpful but walk me through
with some specificity. What kind of difference would it make if
we were to bring scientific or analytical rigor, if you will,
rather than the contrasts with experiential work that we
perhaps--the experiential approach with which we have brought
to this in the past.
Dr. Downs. How does one make a call on a fingerprint? How
many specific points in a fingerprint are required to call that
a match? In the past that has been based purely on experience;
when the examiner reaches a certain comfort level, they make
the call. We don't have a way or metric to say it takes ten
points of identification, twenty points. So there's no
``scientific basis'' for where that line is, and if we are to
apply the standards like we do in medicine to say okay, we have
these test results, therefore we can with confidence make this
call, that is I think what we are trying to get to.
Chair Wu. Do any of the other witnesses want to address
this point?
Mr. Marone.
Mr. Marone. Mr. Chair, I think to say we need additional
research is the key, additional research. What has happened in
the past has--research has been done at any number of levels,
usually by the practitioners, the people working in the field,
whether it be for firearms identification or fingerprints, and
I will use firearms examination as the first example. There
have been a number, literally probably hundreds of studies
where individuals have taken ten sequentially manufactured
barrels to see just how close they looked before we do anything
to them and can we still differentiate them even though they
have come off the assembly line one after the other. But the
key is, those studies haven't been broad enough or have looked
at enough issues, statistically analyzed. Maybe they didn't
answer all the questions that an individual would want and so
we need to take those same kind of studies, broaden them, make
sure that all the questions, issues variables are answered, and
that would give you the scientific basis. So a lot of the work
is out there, it just hasn't answered all the questions. But
what I can say is, of all the work that has been done, all the
research that has been done in fingerprinting, all the research
that has been done in firearms identification, nothing has led
anyone to believe that it isn't proper, that it can't be done,
which if you are going to truly look at it scientifically, that
is a two-edged sword. Just because there isn't full validation,
you can't jump to the conclusion that it is empirically wrong
when you do have some research that indicates that there is
some, you just need more work. So I think that is where we are.
There is a lot of research that has been done. A lot of it
hasn't been published in technical notes and so forth, and it
needs to come up to that same level of rigor in peer-review
journals, and so forth, so that everyone can look at it, try to
reproduce it, and so forth. So that I think is the issue that
we need to make the research that has been done more broad
based and more really attuned to what exactly the question is.
Mr. Neufeld. Mr. Chair, can I respond to that for one
second? Because I do disagree.
Chair Wu. Yes, a response here, and then I intend to return
to this issue because it is a core issue, but I am a few
minutes over my time. With Mr. Smith's forbearance, go ahead.
Mr. Neufeld. My understanding of the scientific method, and
I am not an expert in it, I don't have a post-doc in it, is the
burden is on the proponent of any scientific hypothesis to
prove that it is right. It is not our burden to show that what
they are doing is wrong, okay? They have to make out sufficient
basis to demonstrate that something has been scientifically
validated. That is number one. Number two, in response to what
Dr. Downs said, could you imagine in a medical context, because
he was talking about fingerprints, if ten different examiners
looked at the same cells and had ten different definitions as
to whether they were simply abnormal as opposed to malignant?
How could we have confidence in medicine if we had that range
of opinion? It wouldn't work in medicine. It can't work in
forensic science.
Chair Wu. Well, Mr. Neufeld, I may not have a full
understanding of medicine science but my impression is that
with guidance from other sources that actually is what happens
in imaging, that is, you see a pattern of shadows and light
and, you know, based on 10, 100, 1,000 reads, you develop
patterns and they become more analytically accurate with
additional data but ultimately it is a match against that
background.
Mr. Neufeld. But you wouldn't expect that there would be 20
different opinions on the same data looked at by 20 different
analysts, okay, and that is the difference that I am talking
about.
Chair Wu. That is absolutely correct. You would not hope
for 20 different opinions.
Mr. Neufeld. Right.
Chair Wu. But you might get two very different opinions
from two different readers.
Mr. Neufeld. I understand that, and the third point of this
is as follows. You know, what you did have in medicine at the
early part of the 20th century was a commitment to sort of
revolutionize and transform medicine in this country. You had
the creation of the National Institutes of Health [NIH] with a
very, very ambitious research agenda, and we have never had
anything--I am not even talking about trying to do something as
complex as that or as grand as that, but you have never had a
kind of freestanding research agenda for forensic science, not
just to validate that which is already out there, if it indeed
can be validated, but also to encourage, okay, as I am sure
this committee is concerned with, that kind of incubator for
new technology, for new forensic science. What is going to be
the next DNA, the next truth machine that we can build the
industry out that will be very successful, not only in helping
forensic science but also in helping commerce and exporting it?
You know, we want a research agenda that can do all of those
things and it is sorely lacking at this point.
Chair Wu. We will return to this issue, and I will be
asking tougher questions of the other perspective on this.
Mr. Smith.
Mr. Smith. If you are on a roll, go ahead.
Chair Wu. Well, I think that given the presence of other
Members here, we want to get a round in the interest of
fairness. Mr. Smith, please proceed. I am reining myself in.
Mr. Smith. Thank you, Mr. Chair.
For all of the witnesses, the entire panel here, if you
wish to respond, certainly there are a lot of technical
recommendations in the report. What would stand out to you as
the highest priority, if you wouldn't mind, starting with Mr.
Marone?
Mr. Marone. I don't think you have a single highest
priority. They are very much leveled, if you will. If you look
at establishing maybe a priority based on what can be attained
first, not easiest, but with least problematic issues, moving
on the accreditation and certification, certification of
individuals and accreditation of laboratories. Those are two
already vibrant, rigorous programs that are out there and can
achieve significant gains in the community. The certification
for the individuals and the accreditation because even though I
said that, you know, almost 85, 90 percent of the laboratories
are already accredited, one of the other issues that is out
there is the other service providers. This is the ID section in
a police department where they do fingerprint comparison, you
know. There is not that much accreditation or certification out
there, certification to a certain extent, but there is not that
much accreditation out there. So by taking that first along
with--and then education and somewhere in there you have to put
in resources because we can train individuals, we can certify
the individuals, but if they don't have the equipment or the
people to provide the analysis at the other end, then we are at
mixed purposes.
So your question, I am not trying to go around the circle,
is we kind of need them all and they are separate lines that
can be done in parallel, the accreditation, the resources.
Laboratories are just up to their eyeballs in casework. We have
got to fix that, and it is not a quick fix, well, we give them
a whole bunch of money for overtime, or we outsource to provide
laboratories or so forth because that only fixes it now and
then two years from now we are right back in the same
situation. So the resource issues, the accreditation and
certification goes a long way towards a lot of these other
issues as far as competency, effectiveness of the analysis and
so forth. You look at a lot of the recommendations and they can
really be subsumed into one, all the quality control issues
into accreditation and certification. Those all can be covered
by those programs so I would place those first and then
education and certainly resources. You pick which one you want
to do first.
Mr. Smith. Any estimate of cost?
Mr. Marone. If I had that answer, I wouldn't be here right
now speaking in the capacity I am. I would probably, you know,
have a global conglomerate answering that question to
everybody. You know, we look at what has happened in DNA and
the modest, relatively modest now, amount of money that has
gone to DNA analysis in the five years that it has been. We
have seen tremendous progress as far as capacity enhancement
and backlog reduction, and really let us not worry about how
much actually was in the appropriations, how much money made it
to the laboratories, and it was probably $50 million, maybe $60
million a year, and yet we saw progress. It is still not enough
but we saw progress. So multiply that by all the other
disciplines.
You know, I hesitate to throw a figure out because then
somebody runs with it, you know, and everybody is throwing out
trillions of dollars now. I don't think we have any idea what
this cost may be. Certainly accreditation, several million
dollars for accreditation, anywhere between $5 million and $50
million to make accreditation happen, and that is not counting
the cost from the laboratory's perspective, the time that they
must spend preparing for that. The same thing for
certification. We have no--I have no idea how many--how much it
might cost but, you know, it is a large figure, if that helps
you. You know, we batted that around the committee and it is
like there is no way to do that. You have to first find out
what the issues are before you can figure out what it is going
to cost, what the numbers are, and we have yet to define the
number of service providers outside forensic laboratories, how
many PD ID [Police Department Identification] units are there
and so forth.
Mr. Smith. Thank you. Anyone else?
Ms. Henderson. Yes. I think what we really need to do is do
a strategic plan and I think this is--my learned colleague at
the end of the table and on this end of the table as well. One
of the things that we need to do is, what are our priorities,
and I think that is the key. You know, the NAS committee listed
things, they have recommendations, but there is no strategic
plan put forth, and I think that is very critical, and also I
have to say with Peter, research is critical. If we don't know
what is going on in all the different disciplines, and this is
what is interesting about forensic science. We are a
multidisciplinary group. We are not like anything else. We are
not like medicine, although we have, you know, forensic
pathologists like Jamie with us, but we have so many different
diverse groups within forensic science. But a lot of research
could be done and in fact that is where you take the
institutions, for example. You could use universities and work
in conjunction with laboratories because the laboratories are
taxed. They are overtaxed with many things that they have to
do, and I think Pete is correct. We don't know how much money
this is going to cost. We have to take a look--what is in
existence, and that is why I said let us start with some
immediate action like what can we do with existing things that
are in place like accreditation and like certification
programs. There are quite a few of them. And then work from
there to improve, identify the research priorities and then
move forward. I think that would be practical, which is one of
the things in this economy we need to do.
Mr. Smith. Thank you.
Dr. Downs.
Dr. Downs. I think I agree with what my predecessors have
said. I would also say I think that as a practical matter,
given that the courts are relying on this fingerprint evidence
and firearms evidence, for example, and the other pattern
evidence, that we have to validate that science for those
purposes, for courtroom purposes because that evidence is
already ``in process'' and we have people waiting for trial. We
need to address that issue, I think, as one of those initial
priorities.
Mr. Smith. Mr. Hicks.
Mr. Hicks. I would just like to voice my agreement to all
that has been said here so far. I think it is--the elements are
there to draw upon, you know, to enhance and to help address
some of the critical questions that have been raised. I suspect
much of that information is already there. It just needs to be
put into a package and appropriate form and then subjected to
scientific scrutiny. That would be helpful for the courts. But
it ought to be recognized, I think, the context of how some of
these now-called sciences evolved, fingerprints and firearms
identification, fiber identification, things like that. I mean,
this was all investigative techniques. These were undertaken to
try to help bring some information about a criminal event that
has taken place.
So one of the first roles that the crime laboratories
initially had to face was just simply identifying the white
powdery substance as a controlled substance meeting the
critical element of the law, so that of course involved in
chemists being hired at the laboratory. But prior to that, the
question of trying to reconstruct the criminal event and trying
to then test what can be observed at the crime scene based--
test that against the statements of witnesses that may be there
and again trying to assess and reconstruct just exactly what
took place before it is then decided whether there are any
charges to be brought and how that would proceed in court.
So consequently, a lot of the development, particularly of
the pattern-type recognition, the observation-type techniques,
such as fingerprints, such as firearms identification, other
things like that, evolved in police departments probably from
investigative personnel and not so much scientists and then--
but in my estimation, through the years, through
organizations--forensic science organizations as these
individual techniques have evolved, the agencies had brought in
people with scientific backgrounds as they have recognized that
need. They probably were surprised when they first arrived at
the level of sort of scientific underpinnings there and I think
there has been a lot of work done by a lot of people to try to
address and assure themselves that they were offering opinions
confidently in their individual cases. So that is where I think
again NIST would have the--again as a short-term, efficient,
quick kind of response kind of a thing, they have the capacity
to look at information that has been developed, identify where
the gaps are and, where additional information is needed, and
might be able to try to more aggressively and quickly and
directly address some of the most critical comments found in
the report.
Mr. Neufeld. It has been said that for a lot of these
disciplines that there was plenty of scientific data out there,
we just didn't collect it. One of the specific requests that
was made by the National Academy of Sciences during the time
period that they had this committee up and running, and they
had public sessions was they invited people to come in and
actually produce the scientific data that folks were referring
to. And I will just use this as one small example. Under the
odontology section on bite marks, they reached a conclusion,
``The committee received no evidence of an existing scientific
basis for identifying an individual to the exclusion of all
others.'' There is another report I read which----
Chair Wu. I am sorry, Mr. Neufeld. What methodology were
you referring to there?
Mr. Neufeld. The odontology, bite marks section, for
illustrative purposes. There was a lot of talk in the report
that a lot of these problems were known about back in 1999 when
NIJ did a study, and another report that was done in 1995 and
one done in 2003, and I think it is shortsighted if we simply
believe that we can quickly deal with a couple of these
problems and then things will be okay. When I read this report,
the one thing I walk away with is that it won't be okay, that
in fact what they are saying is because no one has ever
demonstrated the will or the vision to do these things before,
that you really do need a single entity, which they call a
National Institute of Forensic Science, that can coordinate all
these objectives. Yes, once that is up and running they can
prioritize, they can decide that, for instance, some of the
disciplines that Mr. Hicks and Dr. Downs were referring to are
the ones that need to be addressed first. But you still need
this national entity that can look at the financial needs, for
instance, of all the various crime laboratories that Pete
Marone was talking about.
One of the fundamental problems we have seen in forensic
science, and I don't think there will be any disagreement in
this panel, is there has been kind of a balkanization of
forensic science in America so people have to go to 20
different pots, people have to deal with 20 different
organizations, and it would be much better if there was a
single entity that could coordinate all of this and it could
create its own priorities for research, for giving out the
federal money, for doing all those things that you would expect
to do if this is to be a science-based undertaking.
Mr. Smith. Thank you very much.
Chair Wu. Thank you very much.
The gentlelady from Maryland, Representative Edwards.
Ms. Edwards. Thank you, Mr. Chair, and thank you to the
panel. I would say I do look forward to at some point in the
future hearing directly from NIST about some of the analyses
and recommendations and the way that they believe they can play
a continued role in the good work that they are doing out in
the fourth Congressional District in Maryland.
To Mr. Neufeld, I really appreciate--and I have been
pronouncing your name apparently wrong since 1992, but I
appreciate the work that you have done. I had the great fortune
when I was at the Arca Foundation of being able to support some
of the work of the Innocence Project and all the projects
around the country looking at DNA and obviously other evidence
that resulted in people being wrongfully convicted,
particularly of capital crimes and serving life terms and
facing execution, and I just think that the work that you have
done with this new technology has been an amazing revelation
into our criminal justice system and the way that it sometimes
can fail people who sometimes are of little means and don't
have the ability to defend themselves, so thank you very much.
I have a question really that relates to funding, and while
you may not be able to project the amount of resources that it
would take to do this work, I wonder if any of you have any
estimates across the federal landscape of the amount of
resources that are already being spent in forensic sciences and
technology. Because I think with a lot of things, we are not
always in a position here in Congress of creating a new agency
because we have a new field, and that in itself could be very
expensive and maybe not even very productive. I look at the
work, for example, around climate change that is actually
taking place across--which has a number of different kinds of
disciplines contributing to the field and taking place across
many different agencies and now with some greater coordination
out of the White House and so I wonder if you could comment
about a way that we can--and particularly Ms. Henderson--about
the way that we can look at the work that is in front of us and
the recommendations which I think are important, but that we
can use some existing resources or build on those capacities
rather than creating a separate federal agency.
Ms. Henderson. Well, I think if we look at what is existing
and then we would have to look, of course, at the latest
legislation that is out there but, if you have to look at
different entities, it is going to be NIST, it is going to be
NIJ. There are forensic capacities that are being utilized in
the Department of Defense [DOD]. There is the Department of
Homeland Security. See, that is the thing. As Peter pointed
out, there are many little pockets out there with different
resources, and in fact sometimes there is--and this goes back
to what Pete said too. There is research that is being done
that we in the forensic community are not privy to because it
is in Department of Defense or something and that is not out
for peer review, for example. So I think if we look--and I
think, Pete, you had mentioned something about that in the new
economic stimulus package. There is between $4 billion and $5
billion. Is that correct?
Ms. Edwards. But do you have an idea across federal
agencies of the resources? Maybe that is something that we need
to figure out to get a better handle on. Whether the resources
that you are talking about that would be used, perhaps, even to
create a new agency already in existence, and maybe there is a
way to figure out a coordinating role among these agencies,
even the ones that are out of our hands in some ways like
Department of Defense or Homeland Security.
The other question sort of goes not so much to the funding
levels, but what type of coordination do you think is necessary
even across, you know, the ones that we know about, FBI, NIJ,
NIST?
Ms. Henderson. Well, I would like to talk about that
because when I was the President of the Academy, one of my sub-
themes was collaboration, and sometimes there isn't as much as
we would hope for in the forensic science community, but I
think now we are all saying we must all work together. I mean,
this is a diverse panel if you look at us and we have come to
the table, so to speak, because it is of such concern both for
the justice system, and I am saying both the criminal and the
civil justice system. So I think what we have to do is identify
all the resources that are available. We all want to make sure
that justice, both civil and criminal, are successful, and we
cannot do that unless we identify what is available now. Don't
duplicate efforts. I think that is a waste of everyone's time.
And we have to be cognizant of what our economy is looking like
these days. I mean, we cannot ignore that and we are suffering
across the board here whether we are in education, the
Innocence Project, in a crime laboratory, you know, pathology
work, all of that.
So I would say the first thing probably to do is to
identify the pots of money, who is working on it and then can
we bring people to the table. I don't know whether, you know,
people have to be dragged kicking and screaming or not. I am
hoping not, since I think we are all trying to collaborate at
this point.
Ms. Edwards. My time is up, and I think this is something
that we actually do need to explore and then we can look at the
set of short-term recommendations that we could follow through
on right away even though we may not be able to quite reach the
long-term yet. Thank you, Mr. Chair.
Chair Wu. Thank you.
The gentleman from Georgia, Mr. Broun.
Mr. Broun. I thank the Chair.
Let me give you a little background about me. I am a
physician from Georgia and so Dr. Downs might be able to
understand what I say. If you all need some interpretation, he
will be glad to do that, I am sure.
Mr. Marone said that NIST does not have all the package,
and I am concerned. I would like to see a show of hands,
please. Some of you seem to be promoting a new National Bureau
of Forensic Science or new agency. Who of you all's group are
proposing a new national bureau? Would you please raise your
hands? Okay. Three, four, one not. Okay. Of the four that are
proposing a new national bureau, why not in the private sector?
Why not in the states? Why can't this be done? Because I am as
a scientist seeking truth all the time. When I graduated from
medical school, the Medical College of Georgia in Augusta, I
was taught things as being absolutely true. Three or 4 years
later, through continuing medical education, I found the
opposite is true, and I can give you many examples of that, and
that is true with all of science and we have to have peer
review and we have to have the independence that Ms. Henderson
was describing, and having that independence is extremely
important as far as I am concerned to make sure that we don't
convict people who are not guilty. I want to put the guilty
folks in jail and make them pay for their crimes and I want to
make sure that people not guilty are exonerated if they are
charged.
So why not do this in the private sector? We have got two
competing forces here, the district attorneys, the prosecutors
on one hand, the defense attorneys on the other with a lot of
money involved on both sides at the local and State level. Why
not allow market forces to develop this kind of scientific
inquiry to find the truth and the new truth as it develops? Mr.
Hicks?
Mr. Hicks. Well, I think the--again, because this is driven
typically by the D.A.'s, I mean, they are the ones that--and
the police investigators at the crime scene--they are the ones
that have the need to try to gather the kind of information
that will help again reconstruct the event, establish elements
of the crime, maybe link the suspect and the victim together.
So it seems to me that is where the need is going to be
defined. And then whether or not you can turn that to the
private sector, I think you probably could. I think maybe that
is where NIST actually is kind of uniquely positioned because
they are involved with the private sector to a great extent,
and it just strikes me that if given this role with respect to
the forensic activities, as these new needs are defined and
emerge, they may recognize opportunities in the private sector
that can be brought to bear on those. And of course, just as
with DNA technology, while the significance of the technology
was recognized early on, but having the reagents, the testing
equipment, all the supplies necessary for performance in the
laboratory, these all had to be communicated with the private
sector and so there was, you know, a lot of interaction there
at that time. The private sector was eager to find out what the
needs were because, I think, they too recognized the potential
for growth in that area.
Mr. Broun. Thank you, Mr. Hicks.
I would like to ask another show of hands, who of you all
out of the panel have read and studied the Constitution of the
United States? Could I see hands? Okay. Four or five of you. I
carry a copy in my pocket and I believe in this document as it
was intended by our Founding Fathers. Could you all show me
somewhere in this document where we should develop a new bureau
of agency of forensic medicine or forensic science here in the
United States? If you all could show me that, I would
appreciate it.
Ms. Henderson. Actually Peter would probably say something
like we could look for a penumbra, right, or a shadow within
some of the Constitutional amendments that say that we--to
protect people's rights that we would be able to have something
like this. Peter?
Mr. Neufeld. Congressman, if I may, I also wish to respond
to your last question because I think you raised a very good
question, and I actually do believe that the private sector can
play a huge role in doing a lot of the research that you are
describing, but the one overarching principle that came out of
this report, and I think there is no disagreement on this
panel, is that whatever fixes need to happen have to happen
upstream of a courtroom, that historically defense lawyers,
prosecutors and judges have not done a very satisfying job of
separating the wheat from the chaff when it comes to good
science and bad science in criminal cases. I would be more than
happy to send you a peer-reviewed article that I wrote last
year on that specific subject, and what you will see is that
even the very famous Daubert decision that came down in 1993 is
not really used in criminal cases, very, very rarely, and that
it is believed by everybody here that if you can get this stuff
right before it ever gets into a courtroom, then we can all
have much more confidence in what goes on, and you can't simply
leave it to the so-called crucible of the courtroom to work it
out.
Mr. Broun. Mr. Neufeld, I appreciate that. My time is about
out. If the Chair would just permit me to make a statement,
then I will quit.
Chair Wu. Absolutely.
Mr. Broun. Back to my question about the Constitution,
unless you look at a perverted sense of the Constitution, you
will not find in that document anywhere Constitutional
authority to develop a new national agency or department of
forensic science. You won't find it. But we are operating here
on the perverted idea in Congress, the courts as well as the
Administration whether it is Republican or Democrat, all seem
to operate on a perverted idea of what the Constitution is all
about, and I find that very regrettable. But as a scientist if
I am extremely interested in finding truth whether it is in
forensic medicine, forensic science, just even medicine as I
still practice or not, but I don't think we are going to have
the intellectual freedom with a new government body because
there is going to be government control over that body, and I
encourage you to think long and hard before continuing to
promote a national body. NIST does a great job of setting
standards and I think we have other opportunities to develop
truth in the forensic areas without developing a new body, and
we frankly don't have the money now to develop these new
standards. So I encourage you and others to look at--we have
got to solve the economic problem in America and developing new
bodies and new bureaus and other things, maybe they are nice
and maybe they are not Constitutional but we would want to do
that. I think there are better ways than trying to look at
that, and let us find those solutions because I don't want
anybody sitting in jail who is not guilty and I want to know
the truth as a physician.
So I have other questions I will submit for you all to
answer and I appreciate you all's time and I thank the Chair.
Chair Wu. Thank you, Mr. Broun. I am sure that we will be
able to get back to you on a second round of questions if you
would like, and I would like to thank the gentleman from
Georgia for giving me the opportunity to pull out my hip pocket
copy of the Constitution. The argument is typically that
article 1, section 8 provides various authorities. There is a
specific authorizing provision in the Constitution for NIST to
provide a system of weights and measures for the country but I
just want to point out, because this issue has come up in my
Congressional district repeatedly, usually with respect to
Social Security or Medicare about Constitutional authority. I
just want to point out that there doesn't appear to be textual
reference to NASA or to the Air Force in the Constitution
either but we have seen fit to stretch it in each instance, and
this is not to engage the gentleman in Constitutional debate at
this point but we perhaps could continue the conversation over
lunch sometime.
Mr. Broun. If the Chair would yield a moment?
Chair Wu. I would be happy to yield.
Mr. Broun. I would love to have that opportunity to have
lunch with you and discuss that, but from my perspective, we
are operating governmentally in the Congress, pretty much
throughout the Congress as well as in the federal court system
as well as in the Administration on a perverted idea of what
the Constitution is all about, and I believe in the original
intent of the Constitution. National defense is Constitutional
so therefore the Air Force and NASA and some of those other
things that were not specifically mentioned fall within the
aegis of national security and national defense. NIST certainly
is one of those things that I agree we need to have the
national standards, and that is the reason I would like to see
NIST take over some of these things to make sure that the
science is correct, but here in this committee, throughout
Congress, we hear people talk about the climate change and
global warming that is absolutely certain manmade and there are
many, many scientists across the world who say that is
absolutely not true and there are scientists who look at all
things, in my medicine, my field, and others, and there is
always debate, and that debate is good in the scientific
community because that is what peer review is all about, and I
think it would be critical for us to continue in forensic
science back to this issue so that we have that independence
and have many entities looking at these various things whether
it is DNA testing or bite marks or other entities so that we
get the truth and continue to seek that truth. Having one
federal body that is focused on this is I think counter to good
scientific inquiry, and besides being un-Constitutional in my
opinion. So let us have lunch and we will talk about that
further. Thank you.
Chair Wu. I thank the gentleman.
Mr. Broun. I thank the Chair.
Chair Wu. Reclaiming my time. While the gentleman from
Georgia and I may have slightly different Constitutional
interpretations, I think we share a concern about whether the
creation of a new agency at this point in time is the
appropriate response, and I would like to get to that after we
return to mining the subject of the core concern about is there
sufficient science, where is the science behind forensic
science, what difference does it make. I am still trying to
understand the core concern here, and forgive me if I am a
little bit slow, but it appears to me that with DNA evidence we
had a body of science that was developed independently of any
forensic application and then a forensic application was found
and eventually solidified, but DNA is something that we have
been working on since the 1950s, maybe even a little bit
before, but there is an independent body of work. What Mr.
Hicks seems to indicate is that a lot of the methodology
developed in forensics stems from investigative work and is
experiential and a body of work that developed over time and
pieces of it have been--pieces of it are supported by research,
other pieces remain perhaps more experiential. Am I beginning
to understand the picture here, Mr. Hicks? Would you care to
expand on that?
Mr. Hicks. Yes, I think you have hit it right on the head.
That is exactly right. And as Peter mentioned earlier, I don't
know what the response was when they invited those
practitioners in those fields to come forward with information.
I suspect that they didn't. I suspect part of it may have been
an issue of trust and a question about where is this going, who
are we giving it to, and knowing that they operate in a very
adversarial environment of the courtroom all the time. But the
other is that it may just not have been in sort of the more
formal scientific forum as well. And that is where again I
think if people who are trained and have the experience in that
type of activity, if that could be brought to bear on the
existing information--and there will be gaps, I am sure,
identified and holes identified and----
Chair Wu. Can we try to bear down on the issue of what
difference would it make? Now, Mr. Neufeld gave a very graphic
example of 200 innocent individuals exonerated by DNA, let us
say, who were convicted, subsequently exonerated, and out of
those 200 perhaps 100 perpetrators who were, if you will, loose
on the streets because of the wrongful incarceration of the
200, that 100 real perpetrators, if you will, were loose
longer. I mean, that is one graphic example of a difference
that it would make. There seems to be different levels of
challenge as to different testing methods whether it is
ballistics or bite marks or hair or paint chip analysis. Can
the panel further address for me examples of what difference it
might or might not make to the judicial process if we were to
apply science more broadly to what has historically been a
collection of experiential data points?
Ms. Henderson. Mr. Chair, if I could respond. One thing,
and I think Peter pointed this out also, we have to remember in
the criminal justice system only two to four percent of the
cases ever go to trial, so we want to make sure that--so we are
not really able to cross-examine and challenge many of these
issues because things are pled out, there are all kinds of
other things that go on. I would say because we have such a
diverse area in forensic science, like Dr. Downs, pathology is
not really--I don't think there are really challenges to that
as much although there are some, like shaken baby syndrome, and
things like this come up as theoretical debates and also are
challenged in court. But then we have the pattern evidence area
and I think that is really when we look at the NAS report, they
are looking at what we call pattern evidence. We are looking at
fingerprints, we are looking at bite marks, we are looking--
see, paint and things like that, we have chemistry. I mean,
that--again, there is not as many, I think, attacks on
toxicology, on chemistry, drug chemistry. I mean, there are
always new methodologies that are developed.
Chair Wu. Are most of the problems focused in these pattern
areas where we seem to have, if you will, a statistical
problem?
Ms. Henderson. And you can't--I would say one thing, that
they have not--you can't really have statistics in some of
these areas. There are actually in tool marks, for example--I
will give you an example. Somebody comes to pry open, you know,
your sliding door and then they have someone come from the
crime scene to say, here, we know that this is the pry bar that
we just found in this person's car to pry open that door. There
is a debate whether you count striation marks. I mean, there
are two theories of this. One group says we don't need to do
that. The other people say--so within--and again, that is like
science. You are always debating in science, coming up with new
methodologies. So there are actually--and like Pete pointed out
with the knife patterns, that is another one. They have all
kinds of pattern evidence with tool marks but it is highly
debated. So I think I saw, at least when I read the whole
report, the more the challenges are in the area of what I would
call pattern recognition forensic science, but not in some of
what I would say forensic pathology, toxicology, drug chemistry
and areas like that, and I don't think that is really where the
concentration was in the report.
Chair Wu. Help me understand that. Where there are things
like toxicology reports and chemical analysis of paint chips,
do you all agree that those are more settled procedures and
less doubt about them? Mr. Neufeld.
Mr. Neufeld. I agree with your original comment that the
biggest problems occur in those so-called matching disciplines,
pattern disciplines, but there are other types of problems in
the way that they are actually implemented in the criminal
justice system which you should be made aware of, which are in
the NAS report. For instance, since most cases don't involve
DNA, we all agree on that, and we all agree that most cases
don't go to trial. Most cases are either dismissed or resolved
by a plea of guilty and so therefore in most cases the people
who are the principles, the lawyers and the defendant and the
victim, are looking at a lab report, a piece of paper, and
there are no national standards on what goes into a lab report.
And one of the things that the NAS report calls for is there
needs to be national standards so whoever reports the report
can figure out what happened.
Chair Wu. So even where there is, if you will, more science
as in chemistry, there are certifications issues about the
accuracy of the lab tests. There are issues about procedure.
There are issues about the format and the content of various
reports.
Mr. Neufeld. That is correct. Thank you.
Chair Wu. And nobody disagrees with that. But is there
still consensus that there is a much bigger problem in the
pattern recognition fields like ballistics, bite marks,
fingerprints? Dr. Downs.
Dr. Downs. I think what we are looking at is a couple of
issues that overlap. One is the fundamental scientific testing,
the reproducible number, and I am going to probably get my good
friend, Mr. Neufeld, upset, but he refers to ``DNA
exonerations.'' To my knowledge, DNA has never exonerated
anyone. It has been used for that purpose but it is only a test
result, and we have to place that test result into context. DNA
has never convicted anyone. It has been used and interpreted
for that purpose but what we are talking about is the metric of
actually performing a scientific test.
The accreditation and certification goes to the scientist
practitioner--that they are actually qualified to interpret
that test result and put it into the context. So I think that
part of the report, that you need to have both of those
together simultaneously because the reports need to be
understood. They need to be understandable. Someone needs to be
able to read my report and understand why I made a
determination.
Chair Wu. Well, Dr. Downs, I think that we are in agreement
that if there is a sound methodology, one still has to have a
sound practitioner and have standards for the form of the
report and the content of the report.
Dr. Downs. Yes, sir.
Chair Wu. So we are in agreement on that, and there is a
certification issue here and a standard-setting set of issues.
I am trying to get back to, are there core issues with some of
these technologies that we use that have a deep history but
perhaps have not been analyzed in ways that we would consider
supported by lab science? Ms. Henderson?
Ms. Henderson. Yes. Actually this brings up another issue
which I wanted to touch on is education.
Chair Wu. Can we finish this one first?
Ms. Henderson. Yes. Well, that is what I am getting at. I
am going in a circular fashion right now. No, actually it is
education because lawyers for a long time--these things weren't
challenged because lawyers did not have science backgrounds.
Only 5.3 percent of law students have any education in physical
sciences. So now that people are getting, I would say, up to
speed in whether it is computer science or something else, now
there are many more challenges that are being made, and for a
long time fingerprints were never challenged, tool marks were
never challenged. It was a given that this is good science. But
then when people started asking well, where is the rigor, where
is--and there is the very famous case that took place in
Philadelphia with fingerprints. It was the first time that
somebody in federal court challenged a fingerprint, and this
was in a bank robbery case, and all of a sudden people said
well, where is the data, we don't have anything that supports
that the fingerprint evidence is really valid. So I think that
is where we are looking, and these are many cases. I mean, if
you go to my website, NCSTL.org, we have cataloged all these
types of cases that say here is where the challenges are and
that is again, I think--really what we are seeing is the
challenges are being made in things that, as John said,
developed through law enforcement but then didn't have the
rigor until the attorneys started getting educated, and they
are still not that well educated, I have to say, in most
science, other than Peter Neufeld, of course. But, you know,
that is one of the things, and he has been doing this for
years, but other people are not being trained in that
particular area. So I think the rigor needs to be imposed in
many of, I would say, traditionally accepted pattern evidence
areas and that is what the report says.
Chair Wu. Thank you, Ms. Henderson.
Mr. Hicks, you headed up the FBI crime lab. Have we just
been taking on faith these fingerprint matches, these bite mark
matches, and if you drill down to really focus on: is there
evidence that a match is a match, do we have problems when we
actually drill down and start asking those questions?
Mr. Hicks. Well, of course, I am not an expert in all those
areas, you know, to that extent, but it is experientially based
and I think if you were to speak with someone who has worked in
that field for some period of time, they have confidence that
they are able to distinguish patterns. But again, there are so
many uncertainties in an actual forensic evidence case, for
example, fingerprints. You may not have a full, clear image.
You may----
Chair Wu. But, I mean, a full fingerprint is a full
fingerprint, but the problem is you are frequently working with
something a lot less than that.
Mr. Hicks. What you are faced with, right. And so that is
where the--as Pete mentioned earlier, about the quality
assurance practices where you do want to be sure that you have
some level of redundancy in your analytical system. You have a
confirmation process maybe where somebody else looks at it and
verifies, at the very least reviews, the work done to agree
that they come to the same opinion. And can errors happen? I
think they can as has been demonstrated and undoubtedly will in
the future. Errors even happen in medicine with all the rigor
that is behind that. So I think that is where the quality
control process and the accreditation process of course
supports that to be sure that you have systems in place that
help to detect when things go wrong or inconsistent, you know,
with what the sort of established community standards.
I think if you were to go--I mentioned scientific working
groups earlier. I think if you go to the FBI website, for
example, and then look at some of their publications, Crime
Laboratory Digest, for example, is one of those publications,
and you will find on there listings of recommended guidelines
for fiber identification, for example, fiber matching, and it
will go to the level of what should be included in the report.
It will talk about the kinds of tests which should be at least
considered and applied, although not all tests would apply in
all circumstances, but at least it defines which tests will
provide certain elements of information that might help to
resolve whatever question it is they have been put to.
Chair Wu. Mr. Hicks, in those fields where the FBI does
have guidelines, in your professional experience, what
percentage of tests submitted in those fields where there are
guidelines do you think actually meet those guidelines?
Mr. Hicks. I am reluctant to even hazard a guess. I don't
know. It has been--first, with the FBI, it has been a long time
since I have been there. Much has changed in the last 10 or 15
years at the FBI as in all laboratories--the entire community,
in part because of the DNA experience.
Chair Wu. Yes, this is why we are spending a bit of time on
this because frequently when you focus down on an area, as a
legislator I don't get to do that nearly as often as I want to,
what is there is not what one fully expects and many of us
strive for original intent or for truth but it is a little bit
slipperier than being able to get it on the first pass. I guess
even though I didn't--I don't think I have ever seen the TV
show. I perhaps fell in the same trap of assuming that because
folks said it was so, it must be so, and I am beginning to
wonder if it ain't so and whether we should be asking that
question more consistently.
Mr. Hicks. Well, I think, again, it is a question of being
in the forum that is expected, and that is again why I keep
getting back to NIST. I mean, they have the competencies to
help make that assessment, to look at that kind of information
and working with the laboratories and the scientific working
groups of experts in those individual fields, people that are
at least practitioners in the field to draw together what
information is there and put it to that kind of scrutiny, and I
suspect that there will be many areas where they can find that
there are some gaps that need to be filled. Some areas might
just be simply a matter of conducting--refining the scope of
the study and performing the study in a slightly different way
to get to the very specific questions being asked.
Chair Wu. Well, I want to get to the other Members for
another round, and I will continue this, but I just want to
comment that it disturbed me greatly when I made the transition
from a science background to law school and then it took me a
while to figure out how the paradigm had shifted because in
science you kind of work at something and you have competing
hypotheses. Until you collect the data you don't draw a
conclusion about which of the competing hypotheses one should
proceed upon. With law, with judicial process or the
legislative process, it is really quite different. There is a
deadline and there is a deadline for decision. There is
procedural fairness but one has to reach a decision by the
deadline and you make the best choice you can under the
procedural rules and then you live with that decision until
something else comes back and you reverse it. It was very
unsettling to come to that conclusion. I am still not sure that
I am fully comfortable with it but I am not sure that there is
any way to proceed in our society without those deadlines. I am
still going to come back to this topic before getting to a few
crass administrative things like cost and transitional issues.
Mr. Smith, you have been very patient. Thank you.
Mr. Smith. Thank you. Actually I find this interesting and
I appreciate the expertise that you bring. That is, I think,
why we have these hearings and I am grateful for the
opportunity to participate.
We have got progress of science and we have got a criminal
justice system. Are they keeping up with each other? I mean,
Mr. Neufeld, you cited over 200 cases and I certainly commend
your organization for striving for a better way, if you will.
If we used today's system that is most often practiced, I mean
each state would probably have a little different way of doing
things but if we applied today's practices to those cases over
the last several years, I am not real certain with the timeline
of all of those cases that you mentioned, but have we made
progress? How are we doing, say, from the 40,000-foot level?
Mr. Neufeld. You have made progress with respect to those
cases which would be resolved through DNA testing, but as--
because DNA is that robust. But again, as everybody on this
panel will tell you, the types of cases which lend themselves
to DNA is a very small minority of what goes on in a crime
laboratory or what goes on in the broader area called forensic
science. Many of the same disciplines that gave rise to the
wrongful convictions are still practiced today and they are
still practiced today much the same way they were practiced
five or ten or fifteen years ago. They haven't changed, and
that is one of the reasons why there is concern for a new
initiative because others before have failed to have that
initiative to make the changes. Okay. People knew, for
instance--and I am not going to--John Hicks was an expert in
hair microscopy which the Chair asked him about, that is,
looking at hairs under a microscope, a hair from a crime scene,
and comparing with a hair or hairs from a suspect and seeing
whether they are similar. They would look at, you know, perhaps
a dozen or more variables, and I will defer to him on what the
exact number is. But the problem is, they never had any
empirical data as to how common or rare each of those variables
were. Nevertheless, they would make statements in courts of law
about how unusual it is to find two things that are similar or
common without any database, without any empirical data, and to
a large extent the problem with a lot of these so-called
matching disciplines is they lack empirical databases to allow
people to create a statement about an association, and that is
still a problem today. It hasn't changed. And it is not getting
any better in the courts because judges don't deal with it any
more adequately and the lawyers, the defense lawyers and
prosecutors, don't deal with it any more adequately because if
they had done well in organic chemistry they would have
followed Mr. Wu to medical school as opposed to me to law
school. It is that simple.
Chair Wu. Mr. Hicks, do you want to respond?
Mr. Smith. Go ahead.
Mr. Hicks. Well, again, with hair identification you are
looking at features that may help to distinguish one person
from another but always in the reports that were issued there
was a disclaimer more or less, a warning statement put in
there, that this is not an absolute means of identification,
and so it should be viewed in that light. There may have been
circumstances where the hair had been artificially treated, for
example, repeatedly where it would add some level of
uniqueness. At least in the experience of the examiner it would
seem to be something that they had rarely observed and that
might be offered during the course of testimony there to--but I
am not aware of any instance where there was testimony given in
a hair case, maybe Peter knows some, but some instance where it
was given that this is an absolute match that nobody else has.
It was always considered--urged that it be considered in the
context of other information. And so, for example, in some
cases, it might have been a fiber case, for example, if you
find a blue nylon fiber on a victim, on a homicide victim, and
you find a suspect that has a blue nylon sweater. That may be
some association but of course there are many sweaters that
might have been produced like that so that I think intuitively
most people would recognize that and wouldn't have difficulty
understanding that that is not an absolute association.
On the other hand, if you have a case as in Georgia, the
Wayne Williams case some years ago, the Atlanta murders case,
as it was referred to, where there were a number of young men
who were found killed and there were many different fiber types
that were found, 28 different fiber types, in fact, that were
consistently found on the homicide victims and there was at the
suspect that was eventually developed sources for those fiber
types were found in one location. Now, was it an absolute
identification? I don't think so. There was an effort to try to
develop some statistical estimate of how likely it might be
that type of circumstance might occur. But that is the
challenge again. In forensics, you don't know what you are
going to be presented with, and the whole idea is to try to
assess and reconstruct what you are observing and to see if it
might help bear light on a particular investigation,
particularly either to corroborate or dispute eyewitness
testimony that you might have or other facts and circumstances
that you have. It should always be considered in the context of
the whole case, and I think that is what you had gotten to
earlier, I guess. Of course, that is sort of the legal
requirement to look at the totality of things and assess
whether or not you can come and make your best decision based
on the information you have. In some respects, that is taking
place to some extent in some of those types of experiential
types of practices in some forensic labs.
On the other hand, hair identification, the cases that
Peter is referring to where they had success in reversing these
convictions, those are convictions which occurred 15 or 20
years ago prior to the advent of DNA technology typically. If
you were looking at a forensic laboratory today, I suspect
there are a few that actually end with the microscopic
observation of features of the hair. Now they would typically
use that only to identify hairs which might be good candidates
for DNA analysis. So rather than analyze 20 different hairs
recovered in the debris from a crime scene, they will focus on
one or two that seem to be similar in appearance maybe to the
hair from the suspect source that they are considering but then
they would isolate those hairs that looked to be the best
candidates for a potential DNA match and then pass that on for
DNA confirmation.
Mr. Neufeld. You know what? Actually it proves too much
because even when you talk about a combination between hair and
mitochondrial DNA, you have the National Academy of Sciences
explicitly reporting on page 5-26 of their report, but no
studies have been performed, referring to mitochondrial,
working with hair microscopy specifically to quantify the
reliability of their joint use. The problem is, frankly there
are dozens of cases that we have where people were wrongly
convicted based on the inappropriate use of statistics in those
hair microscopy cases and sometimes it was FBI agents
themselves who actually offered these statistics completely in
the absence of any empirical database. That is documented in
transcripts. We can share them with the panel. It is not at all
controversial.
But there is a bigger problem. Even if you don't do as we
did in the case which I submitted to the panel, say giving a
number of one in 10,000, even if you say that something is more
likely than not to have come from this individual, that in
itself, even without giving a number, is a probabilistic
statement and you can't give a probabilistic statement unless
you have some empirical data. So it is not enough to say that
we would have a disclaimer that we will not say it is this
person to the exclusion of the rest of the world, but when you
give any statement like that, it most likely hairs or more
likely than not hairs, that is a probabilistic statement and
you can't make those kinds of statement in the absence of a
scientific empirical database, and they never had it.
Mr. Smith. Ms. Henderson?
Ms. Henderson. Yes. I thought Peter might cite to the--was
it the Williamson case that was in Oklahoma, I believe, or
Texas. There have been cases where they have said something was
a match with hairs and fibers and they said you cannot do that.
It is true, as John says, there are some, you know,
evaluations, improvements now with hair and fiber evidence, but
a lot of laboratories have done away with microscopy. They just
said we don't want to do this anymore, instead we are going to
see if we can do mitochondrial DNA testing, we will do that on
the hairs but we are not going to go ahead and just say it is
microscopically similar because there is not the data.
Now, one thing I wanted to point out though, when you asked
before about whether--how reliable certain areas were, there
was a publication in the Journal of Forensic Sciences on
proficiency testing. They went back to 1978 and looked at--Joe
Peterson is the author of this particular article and he has
done an update. He started in 1978 and looked at proficiency
testing in every area of forensic science and their
reliability, and I have to say hair and fiber was one of them.
You might as well as have flipped a coin. In fifty percent of
the cases they made misidentifications and so that is I think
something that--and I can provide that to the Committee if they
would like to look at this particular study.
Chair Wu. Ms. Henderson, can you explain that to me a
little bit further? I don't know what you mean by proficiency
testing.
Ms. Henderson. Okay.
Chair Wu. And when you say 50 percent is misidentified,
tell me what this means.
Ms. Henderson. Okay. Pete can probably talk more about
proficiency testing because he does this in the laboratory.
Mr. Marone. Sure.
Ms. Henderson. Go ahead, Pete.
Mr. Marone. Proficiency testing is a quality assurance
method, if you will, that is designed to test, ascertain the
competency of the individual examiner. Each drug chemist every
year, accredited laboratories must go through a proficiency
testing program. For example, every drug chemist is given an
unknown. They have to identify what it is. That could either be
from an external source or an internal source but they don't
know what the outcome is. And it is the same thing for trace
evidence, for DNA folks. They will get a stain, identify the
stain, tell us what the profile is, is there semen present or
whatever. And so what it literally is, it is a test of the
competency of both the individual and the operating process
within the laboratory. DNA requires two a year. Everybody else
gets one a year in every discipline. Part of the proficiency
testing process is to ascertain why you got the wrong answer,
whatever that might be. In a lot of instances it is something
minor that you can fix. If it is an instance where you find out
the person really has issues, that individual is taken off of
work until the problem is fixed, and at that same time you go
back and look at other work that that person has done prior to
that proficiency test to see if those issues are----
Chair Wu. Actually I misunderstood you. When you were
talking about proficiency testing and then said 50 percent of
test results were incorrect, I thought the implication was that
50 percent of the results submitted as evidence were incorrect.
Ms. Henderson. No, this is looking at proficiency testing
within the laboratory, not necessarily that they made it to the
courtroom, if I wanted to--and again, it was in certain areas.
Now, again, when they started in 1978 and looked at this and
moved forward, we have put in place, I have to say in the
forensic community, a lot more proficiency tests than were ever
done before. We also have put into place of course ASCLAD/LAB
[American Society of Crime Laboratory Directors--Laboratory
Accreditation Board] accreditation, which then requires these
proficiency tests. Before many laboratories did not have these
requirements, and I know Peter Neufeld will probably chime in
on this at some point. But that is one of the things that have
been improved. I have to say, things have improved over the
years, although I can say it is human nature. It is not
perfect. I mean, these are human beings doing laboratory tests.
But what they are trying to do--and that is why they have
quality assurance groups that go out to the laboratories and
identify if there are weaknesses perhaps in the system, and
that is the other thing that they are trying to work through
and that is something to encourage, I believe with more funding
as well.
Chair Wu. Here is an analogy from a different field. Ms.
Henderson, what you are saying is that this is like having
sanitary tests for restaurants and the restaurants fail 50
percent of the tests or inspections but that is not to say that
50 percent of the customers are necessarily eating unsanitary
food?
Ms. Henderson. I don't know if I would say it that way. I
have to say, with all due respect, I think that is putting
words in my mouth. I don't think that is really--what I am
saying is, in certain areas reflected in the work by Dr.
Peterson, he found that over the years, and he looked at 20 or
more years of proficiency tests, that in certain areas, I won't
say all areas of forensic science, but in certain areas of
forensic science people failed proficiency tests, right, and
that was in--the hair and fiber was one of the most, I would
say, telling areas of the proficiency test failures.
Chair Wu. I am sorry, Ms. Henderson. You all are experts.
That is why you are here. We are not. That is why we are here.
And I am just trying to understand the policy implications of
what you all are trying to tell us.
Ms. Henderson. Okay. I think Peter can address that.
Mr. Neufeld. Mr. Wu, there is a fundamental disconnect, and
the fundamental disconnect is that the reason you use
proficiency tests is there is no way to know. When you are
looking at a piece of crime scene evidence and you match it to
me, did you get the right answer or the wrong answer, if you
will, because you don't have a control. It is an unknown. And
so proficiency tests are a substitute for that. Is that clear
kind of? That is the fundamental difference. So for instance,
when you----
Chair Wu. That is clear. It is somewhat troubling but it is
clear.
Mr. Neufeld. Well, it is very troubling and so one of the
things that you would want from a national----
Chair Wu. Mr. Hicks does not agree.
Mr. Neufeld. One of the things you would want from a
National Institute of Forensic Science, for instance, would be
to come up with a program of proficiency testing because there
are four types of proficiency testing. There are external,
there are internal, there are open, and there are blind. So a
lot of the proficiency testing that is done, for instance, is
the kind where the individual analyst knows it is a proficiency
test and may or may not treat it the same way that he or she
would actual casework. So what you would like to do ideally is
to make the proficiency test more challenging and more robust
and be able to sort of move it into the lab system so the
proficiency test looks no different than an actual case. So you
get the laboratory and the personnel to treat it the same way
they would a regular case. It is expensive to do that. I think
we all agree with that. But hopefully if you had this NIFS,
okay, they could create national standards, they could create,
if you will, a national proficiency test so the expense would
not be on every laboratory and that kind of robust proficiency
testing could happen more consistently throughout the country.
The reason you want to do it--one of the problems we had, for
instance, you know, in some of these other disciplines is you
can assume that you have got the right person, but you don't
have the same kind of scientific control that you have with the
proficiency test to tell you for sure that you have the right
person.
Mr. Smith. Full circle. Back to the creation of a new
agency perhaps. Do we not have enough of a grasp of where we
need to go within the current agency framework, NIST or however
we might proceed without creating yet another new agency that I
think could end up being a bit of a distraction with the
administrative parts of it rather than ramping up with current
agency framework.
Ms. Henderson. I would like to go back to my immediate
action first. I think let us take existing resources. And we do
have--I want to mention, we do have ASCLAD/LAB, which is the
American Society of Crime Laboratory Directors Laboratory
Accreditation Board, which also has testing methods. NIST has
testing methods in place already and I think then we do the
interim action. So first let us start with what we have in
existence. We don't throw out the baby with the bathwater, to
use a hackneyed phrase here, but go ahead and say what do we
have, and we have to corral the existing resources and I think
Ms. Edwards, when she said let us see what is out there, we
need to see what is existing in terms of funding, then let us
see what federal resources we already have in terms of testing
and things like that. Then we go to the interim action, which
would be to evaluate strategic policy decisions and strategies
because we need to say what do we have here right now, and I
think probably us in the forensic community would be able to
probably pull all these things together and see what is out
there. Then do the interim action. Then we go to the long-term
action. I think it has to be a three-step plan. I think that is
a much better way to exercise this particularly and looking at
policy and strategies.
Mr. Smith. Thank you.
Chair Wu. Thank you, Mr. Smith.
I ask the forbearance of the witnesses in repeatedly asking
these questions related to the role of science and forensics
and why it makes a difference. I think this is a topic to which
we will return at some future date. I just want to say in my
own defense or admission of guilt that I have been asking why
does nanotechnology matter for the last ten years because
people don't seem to have good explanations about why it should
be important just because it is small. And I have come to the
conclusion that it is important and it is worth supporting. I
have come to the conclusion that we are on to something here
and that it deserves more focus, but I still quite frankly do
not--I am still trying to understand the role that scientific
rigor can play in being brought to bear on what has been an
experiential field for the most part. Mr. Neufeld has provided
some graphic examples based on DNA and I am trying to
understand how it might affect the rest of what we do, whether
it is conviction rates going up or going down, and our
certainty about providing a sound service. I think that Mr.
Smith has asked some good questions about what would happen in
the organizational interim in trying to organize a new agency
if that were the path we were to choose.
I want to focus on that a little bit, but first I start
with Mr. Marone, and Mr. Marone, you said that resources are a
real problem, but when asked specifically about how much more
in resources, you begged off on the question, and I want to
press you a little bit on that because it is easy to come here
and say we need more, and we are in the line-drawing business
about how much more, so if you are going to ask for more, I am
going to have to ask you how much more.
Mr. Marone. Well, I didn't beg off from the answer of what
kind of resources, how much resources. I begged off the
question as to how much it is going to cost, which are two
different things, one could argue. But for example, if you want
to look at resources----
Chair Wu. We deal with dollar funding here, so if you could
help us with that metric?
Mr. Marone. Well, I can tell you things that it is going to
take. For example, we need more people. How many people? We
have to assess that and find out where we are. But where does
that begin? We need a better entry source for our examiners.
One of the things that we are looking at is the forensic
science applicant pool. Who do we want them to be? Do we want
them to be hard science or would we like them to be more
science based and not requiring a baccalaureate degree as in
many instances now with fingerprint examiners, firearms
examiners and so forth. So we need to start at that level just
like Dr. Downs needs to start with--if you need more people,
you need to educate more people, you need to train them for
pathology. You know, there are reasons why people go into other
fields. We have got to make it more meaningful to them, more
palatable to them to go into the forensic science field, to go
into public service. Forensic science has no scholarship
program, for example, like in graduate school they get a free
ride to go get a Ph.D. Okay. There is no such thing even at a
Master's level in forensic science. We need that to get the
qualified higher-caliber students interested in forensic
science. That is going to----
Chair Wu. Mr. Marone, what I think we need from you to make
a case for this are the measurable inputs that you need. The
factors that you are mentioning are all important policy
concerns but ultimately I think, you know, we have to decide
what are we going to put into this, what are the dollars and
cents, what are the undergraduate or graduate programs, what
are the certification programs, what are the standards that
need to be developed, and I hate to be so pedestrian about this
but I think that is what we need for action going forward. And
I would like to ask you for help with that if we are going to
take meaningful action in this field.
Mr. Marone. I fully understand. That is one of the things
that as a community we have to be able to provide to you is----
Chair Wu. Yes, I am asking you to provide it, and if you
are saying you can't provide it today, I am saying we need to
have that before we can take meaningful action. At least I
think we need to have that before we can responsibly take
meaningful action.
Mr. Marone. I defer to anybody else on the panel because I
know among us we have hammered this thing around a lot and I
don't know that we have come up with any definitive answer.
Dr. Downs. I may be able to give at least a partial answer
regards medical examiners. Recommendation number 11
specifically referred to the medical examiner community
replacing lay coroners with physicians, board-certified medical
examiners.
Chair Wu. And Dr. Downs, I wanted to ask you about that
because in your written testimony you do make that
recommendation, and if you look at the graduation rate for
board-certified forensic pathologists, which is also in your
written testimony, there is just no way that we can get to
having the qualified pathologists that you want with the
graduation rate that we have.
Dr. Downs. Agreed. It is staggering. We go through
extensive training, as you know. Then we go into the
subspecialty of forensic pathology, which I did in order to cut
my salary in half. No one spoke to my wisdom in doing that, but
the reality is, we go into forensic pathology for a different
reason than perhaps other people go into medicine. It is a
public service, and the number of people we need--we graduate
37 residents in forensic pathology a year, 37. We have 400
medical examiners actively practicing full time. We need an
estimated 800. The cost per citizen, somewhere between $3 and
$5 a head. So you can multiply that out. I get roughly $1
billion to $2 billion just to have an operating system. That
doesn't get into the infrastructure of how many offices need to
be replaced and quite honestly need to be up to code for CDC
[Centers for Disease Control], safety and performance of an
autopsy.
Chair Wu. That is the medical examiner side of things, the
medical examiner/coroner side of things?
Dr. Downs. Right, and if we actually were to do away with
the 1,000-year-old office of the coroner, there are 3,000
counties out there and a fair number of them are served by
coroners, and I would imagine that the counties would have
something to say about that issue. In some places----
Chair Wu. Well, Dr. Downs, when an institution has survived
for 1,000 years, there is usually a reason, and the paperless
office has been predicted for a long time but papyrus has been
with us a long time. There is a lot of paper up here.
Dr. Downs. Yes, sir.
Chair Wu. So I think I get the drift of where you want to
go and we ought to push in that direction but implementing from
here to there is the challenge.
Dr. Downs. If we could enhance the investigation, the
abilities of the coroner to do their job, I think that is a
good place to start. We aren't going to get rid of the office
of the coroner anytime soon, as you pointed out, sir, and I
think if we can professionalize the office, we are way ahead of
the game.
Chair Wu. Ms. Henderson, you make recommendations about
substantially increasing research. Do we have the
infrastructure in place to do the amount of research that you
are recommending?
Ms. Henderson. Well, we do have in many universities now,
because, of course, forensic science has increased attention so
there are different programs that are out there that have Ph.D.
students but we can also go to other institutions. I think
there is--and again, if we want to look at hard science, and
that is one of the areas to go to, let us go to biology
departments, we will go to chemistry, because all of these
things can be worked, not just in a forensic science program,
but also in hard science programs. So I think, particularly if
there is money to do research--I know this because I live on
grant money myself--that people will then come and do the
research, again working, I think, in conjunction with existing
laboratories to know what are the needs or with the medical
examiner's offices.
Chair Wu. What I am hearing is a mixed answer. There are
existing laboratories, State laboratories, private
laboratories, federal laboratories. There is a university
research base and----
Ms. Henderson. And they are not always talking to each
other. That is one of the problems.
Chair Wu. And what I don't hear you saying is that the
capacity is there. I don't hear you saying the capacity isn't
there.
Ms. Henderson. Well, of course, I know that--I think the
capacity is there. Of course, people will say we need to have
the dollars to fund it and then I will have to get back to you
with how much money we would need to fund those types of
research programs. As I told you, when I was president of the
academy, one of the things we saw was, there was a lack of
research dollars within the Forensic Sciences Foundation, which
is a group that actually spun off, if I can say it that way,
from the American Academy of Forensic Sciences. So now what we
are doing is, with this $300,000 plus, we are giving stipends
basically to graduate students in these accredited forensic
science programs so that they can do research and they can go
present the research in peer-review settings. So there has been
a movement in that particular area. So I think we are making
many efforts in that particular area.
Chair Wu. Would it be constructive to have departments of
forensic science or a new organization at the federal level to
handle forensic science when this is a very important applied
field but it brings together so many, if you will, different
stovepipe sections of science, whether it is metallurgy,
whether it is mechanics, whether it is biology, organic
chemistry or DNA and biochemistry. Would this be a meaningful
add to try to create this field, if you will?
Ms. Henderson. Well, we actually have--I have to say, and
this is where I receive some of my grant money from is the
National Institute of Justice. They have a science and
technology section that, you know, gives grants to people to do
research. The Bureau of Justice Assistance also has money. So
there are existing institutions that do provide money for
people to do significant research, and of course NIST has been
doing research over the years as well. In fact, they testified
before the National Academy of Sciences group, so I think
that--I don't know that creating another entity is always a
good idea. I don't know whether there could be better
coordination between entities. That perhaps might work. And I
don't know if you, you know, can actually twist enough arms
from federal agencies in order to all work together as a
collaborative venture.
Chair Wu. Well, it seems to me that this is a field that is
tailor-made for our research university structure where there
are disciplines from across many different fields and you
really need to tap and access those fields in order to do good
work.
Ms. Henderson. I would not disagree with that.
Chair Wu. Mr. Neufeld.
Mr. Neufeld. I would just, you know, echo the words of
recommendation number three of the NAS report which calls for
the creation of a competitively funded peer-reviewed research
program that would be at this National Institute of Forensic
Science. They point out through the two years of hearings they
had that there was a terrible paucity of federal funds
available for meaningful research in the forensic sciences, and
certainly what you would want to have is some coordinator, or
quarterback, who could decide what the priorities are, and even
if there are pools of money at DOD or Homeland Security or
other places, at least the quarterback could decide maybe we
can tap into some of those other pools of money but at least
there will be strategic decisions made by somebody, and there
are no strategic decisions being made now by anybody. When the
NAS had their hearings, somebody testified in fact from NIJ,
who was in charge of their science and technology program there
and felt that NIJ was a poor place for locating this research
undertaking because of their own internal perceived conflicts
of interest as representing the different law enforcement
agencies that NIJ currently represents. Moreover, there is a
historical problem at NIJ of almost all their research money
being earmarked, terribly earmarked for not just a discipline
but earmarked that it would take place at a particular
institution, which is the antithesis of the way that the
National Science Foundation works. It is the antithesis of the
way the National Institute of Health works. One of the things
that the reports recommends, for instance, is the NIH should
have a research budget to help forensic pathology so to help
people who are medical examiners get research done in the areas
that are breaking into new territory. They don't even have
that, okay. But if there is a quarterback somewhere who is
going to be looking out for the interests of all these people
in the forensic community, then they can push the NIH to get
some of that money. Then they can push Defense or other
agencies that have pools of money to bring it to bear where it
is needed.
Chair Wu. Well, Ms. Henderson, thank you for sharing your
perspective on Australia, that it has taken them 20 years of
work on this. I expect that as we go down this road, it will
not be a short one no matter what path we choose to take.
Last pass. Mr. Hicks, you seem to have a different opinion
about whether a new independent agency or quarterback or
anything else is needed and I wanted to give you and anybody
else who wants to take the other side a moment to more fully
explore whether to do that or not. What do you see as the
downside of proceeding down that path?
Mr. Hicks. I think just from the practical aspects of
implementation, and you have already articulated, I think, a
lot of the concerns about trying to establish that large an
agency. And even in conducting research, I think it is
important that this be community driven so that someone in an
academic setting who is not familiar with the ongoing
operations of a laboratory and the kinds of questions that they
need to address, there needs to be some connection there so
that they have a sense of directing research that is applicable
to the questions to be answered. And as has already been
mentioned, again, there have been other federal initiatives
here to try to support problems and needs in the forensic
community such as backlog DNA testing and overall quality
laboratory improvement. These may be vehicles that can continue
to be brought to bear to help improve laboratory services. It
seems to me where the big gap is, as I have said repeatedly
here, is that in looking at some of those currently practiced
forensic techniques as to whether or not they meet the
scientific rigor and scrutiny that will help to assure
confidence in the courts and that is where again I think you
could direct activity instead of sort of open-ended research
but you could direct activity into looking specifically at some
of those areas, and it is a question of where does the
competency lie to try to address that right now. Do you have to
build a new organization to do that or are there competencies
now that might be brought to bear on that question.
Chair Wu. Does any advocate for a new organization want to
take a minute to address that? You all are good? Okay. Very
good. Thank you all very much for being here today. The record
will remain open for additional statements and for questions
and answers on the record that Members of the Committee may ask
of each of the witnesses. I want to thank you all for beginning
this path at this committee level to explore what we can do to
improve the state of forensic science in America and look
forward to working with you all going forward.
Thank you very much, and the hearing is adjourned.
[Whereupon, at 12:17 p.m., the Subcommittee was adjourned.]
Appendix 1:
----------
Answers to Post-Hearing Questions
Answers to Post-Hearing Questions
Responses by Peter M. Marone, Director, Virginia Department of Forensic
Science
Questions submitted by Chair David Wu
Q1. The NAS recommends that the Federal Government oversee education
standards and accreditation of forensic science programs in colleges
and universities. What is your opinion of this recommendation?
A1. One of the main points discussed throughout the report is
standardization. The Committee's recommendation was not to replace the
existing accrediting body with a totally newly developed federal
program, but to utilize the existing, already working program which can
be reviewed to assure that it meets the needs. Then support this
program and the institutions applying to it for accreditation. The
example for accreditation of forensic science educational programs
would be the Forensic Education Program Accreditation Commission
(FEPAC), which is a standing committee of the American Academy of
Forensic Sciences. While this Commission has been in existence for just
five years, it has shown significant success in raising the scientific
rigor of the programs which it has already accredited. There is a
quantum difference between overseeing the accrediting body and creating
a new body from the ground up. A benefit of the standardization of
these requirements is that students and these accredited universities
could receive the benefit of federal support in the nature of
scholarships or loans for tuition (forgivable at a rate of say, 20
percent for each year of service in a publicly funded crime
laboratory).
For the existing undergraduate FEPAC accredited universities there
are approximately 1,600 students. If the average cost for each student
is $25,000 per year, the cost to fully fund undergraduate education for
the existing forensic programs would be approximately $40,000,000.
For the existing FEPAC accredited graduate level programs, there
are approximately 175 students. If the average cost of graduate study
is $30,000 per year for each student, the cost to fully fund graduate
education for the existing forensic programs is approximately
$5,250,000.
Q2. What is the level of funds the Federal Government currently
allocates to forensic science research? What will the transitional
issues be in changing from a mostly experienced-based system to a
rigorous scientific-based system?
A2. As noted in the report, in Chapter 2, pages 14 & 15, NIJ funding
for the forensic sciences in 2007 was a total of $6,590,702, of which
$4,048,563 was directed to DNA related research and only $2,542,139 was
directed to crime scene tools, techniques and technologies; Impression
Evidence; Facial Recognition; Iris Recognition; and Automatic
Fingerprint Matching. The Federal Bureau of Investigation has about $33
million allocated for research purposes. Currently, I have no idea as
to the amount of forensic research funding from the Department of
Defense, Department of State or other agencies. However, it must be
noted that other agencies are not developing forensic technology
intended for State and local use. It could, however, be commercialized
but it is critical that Congress recognize that even if a R&D program
for technology was increased, the forensic community would not have the
funding to purchase the new equipment or to maintain it if they were
able to purchase it. Further, these programs are focused on the
advancement of existing technologies not on validation.
Transitional issues should be considered first, research to
validate the underlying principles of the disciplines at issue, namely
friction ridge determination, firearms and toolmark analyses, and
questioned document analyses. In addition to this would be
determination as to the application of statistical models that would
allow for the assessment of a statistical significance of the
particular comparison.
Q3. What federal resources would be required to establish a National
Institute of Forensic Science?
A3. I don't believe that I am qualified to give a number for this as I
do not work in the Federal Government. However, if one were created or
if the existing structure was expanded, then funding would be necessary
for staffing of the entity. In addition, there would be needed travel
funds for numerous technical advisors necessary to review, comment on
and aid in implementation. They would then require a budget of great
significance to support the operational needs of the State and local
forensic community which I believe must be assessed through annual
requirements analysis of that community.
Questions submitted by Representative Adrian Smith
Cost
Q1. What would the recommendations in the NAS report cost?
Specifically, how much funding do you think is required for the
proposed forensics institute? How much is necessary to fulfill the
other technical recommendations, such as basic research, validation,
and standards for accreditation and certification?
You also state in your testimony that federal funding for
disciplines outside of DNA ``falls far short of what is necessary.''
Could you provide an estimate of how much is necessary--even a ballpark
figure for us as we move forward?
A1. I do not believe I can provide to you a total cost to do this as I
am not a federal employee so I am unsure of what it costs to run a
federal agency. I have, however, put together the numbers I believe to
be rough for accreditation which I have listed below. It is important
to realize that this does not include daily operations of labs, such as
additional personnel (which have been estimated by some to be as many
as 10,000 examiner positions), nor the equipment needed not only to
support the new individuals, but also to replace and upgrade the
equipment existing in laboratories now, nor the additional laboratory
space for the additional personnel.
Accreditation NOTE: These numbers do not include any estimates for the
inclusion of Coroner or Medical Examiner offices.
From very preliminary surveys and numbers drawn from the number of
police departments and sheriff offices, it is estimated that there may
be 11,000 entities that fit into the category of forensic service
providers.
To train one individual in each agency to prepare for accreditation
is approximately $5,000 each or a total of $55,000,000.
It requires approximately two years of time for that trained
individual to bring the agency into compliance to achieve
accreditation. The cost of two years (times 11,000 agencies) for this
process is estimated at $900,000,000.
Cost of upgrading of facilities to meet safety, security, etc.,
cannot be estimated since these issues are variable.
The average cost of an accreditation site visit is approximately
$10,000 per visit, totaling $110,000,000.
The accreditation cycle is five years. The average cost of an
annual surveillance visit is $1,000 per site, so the total cost for a
five-year cycle would be approximately $11,200,000 for the surveillance
visits.
Currently, administrative cost of the program is approximately
$150.00 per (what would be a certified individual). If each agency has
an average of 10 individuals working as forensic service providers,
(that's 110,000), the total is 16,500,000 per year or $82,500,000 for a
five-year cycle.
Certification NOTE: These numbers do not include any estimates for the
inclusion of Coroner or Medical Examiner offices.
The cost of certification fees, travel to testing site, study
materials, etc. is approximately $1,000 per individual (times the
110,000 estimated above), for a total of $110,000,000. The ongoing fees
and annual fees will be less than this figure for the succeeding four
years, maybe $75,000,000 each year.
NIST Capabilities
Q2. Assume for a moment that Congress opts not to create a new
forensics institute but still follows through on the technical
recommendations in the NAS report. Which among those should be carried
out by NIST versus other agencies or private sector organizations? (May
want to ask for more detailed answers in writing.)
To put this question another way, if no new agency is created, is
NIST capable of, and should they: a) Establish best practices for
scientists and laboratories? b) Establish standards for accreditation
of forensic labs and certification of forensic scientists? c) Develop
standard operating procedures for forensic labs? d) Oversee education
standards and accreditation of university forensic programs?
A2. Once again, the intent of the report was not to establish new
provisions from scratch, but to work from existing programs. NIST can
aid in standardizing of the protocols and best practices recommended
(but not mandatory) as outlined by the various Scientific Working
Groups. I have already answered b., c., and d. above.
Crime Lab Accreditation
Q3. You note in your testimony that great progress has been made with
respect to accreditation of public crime laboratories--in 2005 over 82
percent of labs were accredited. How do you think existing
accreditation mechanisms should be dealt with in light of your
recommendations for the Federal Government to develop its own
accreditation standards? How might government intervention impact
private sector organizations' incentives to continue its accreditation
work?
A3. Actually, the report is quite clear. Just as in the accreditation
of academic forensic science programs, the committee specifically
stated that the existing accreditation programs not be ``reinvented''
by the Federal Government. What we intended was for the federal entity
to review and assess whether an accrediting body (for testing
laboratories) met the international standards of ISO/IEC 17025 and
therefore would be able to conduct the assessments of compliance to
those standards. During that process, an accrediting body may have to
adjust their requirements to meet the ISO/IEC 17025 specifications.
This action is to assure that all accreditations would meet the
standards required and therefore comply with federal requirements for
funding.
``On Friday, September 12, 2008 at an annual meeting of the
General Assembly of the InterAmerican Accreditation Cooperation
(IAAC), held in Paraguay, ASCLD/LAB was formally accepted as a
signatory to the IAAC Multi-lateral Recognition Arrangement.
This action means that ASCLD/LAB, and specifically the ASCLD/
LAB-International accreditation program for testing
laboratories, is now internationally recognized and accepted as
operating in conformance with ISO and IAAC standards and
practices. ASCLD/LAB is the first Forensic Science Accrediting
Body in the United States to achieve this recognition.''
Upon acceptance by the federal entity, the ASCLD/LAB International
Accreditation Program would continue to conduct accreditations, meeting
the intent of the committee report. This would be true of any
accrediting body which meets or would meet the requirements and is
approved.
Prioritization of NAS Recommendations
Q4. Among the technical recommendations in the NAS report, what one or
two stand out to you as the highest priority, and why?
A4. I believe that this is not a circumstance where A needs to be
completed before proceeding to B or C. Several of the recommendations
can be implemented concurrently. Certainly the research needed to
validate the underlying principles for latent print comparison,
firearms and toolmark examinations, and questioned document analysis
needs to begin (Recommendation 3), as well as the research into the
effects of observer bias (Recommendation 5). This will take some time.
At the same time, the preparation for implementing and requiring
accreditation forensic service providers (labs, fingerprint comparison
units, crime scene, and digital evidence sections) and certification of
individuals can begin. This also will be a multi-year process for
educating the applicable parties, aiding in the preparation,
application, and final accreditation and/or certification.
(Recommendations 2, 6, 7, and 8).
Prioritization of Research Needs
Q5. Has the forensic science community attempted to prioritize
research needs across various disciplines? If not, in your opinion what
areas of research are likely to contribute the greatest benefits to the
legal system through increased funding?
A5. See answer to number 4 above concerning research. While some
research has been conducted along these lines, there has been no
nationally coordinated process to assure that the needs of the
community have been addressed.
Answers to Post-Hearing Questions
Responses by Carol E. Henderson, Director, National Clearinghouse for
Science, Technology and the Law; Professor of Law, Stetson
University College of Law; Past President, The American Academy
of Forensic Sciences
The questions posed by the Committee are thoughtful and relevant.
However, most cannot be answered accurately at this time because of a
lack of data.
For example: there is no data on how many of the Nation's
approximately 17,000 law enforcement agencies are conducting pattern
analysis investigations such as fingerprint and tool mark comparisons
and no line for ``Forensic Science Research'' in the budget of federal
agencies.
Without a solid platform of information it is not possible to
answer questions such as the cost of establishing a NIFS, the cost of
implementing a national research agenda and conducting the associated
research, or even the cost of moving pattern evidence from experiential
to science-based. The same applies to the recommendation on
transitioning control of forensic services from police to non-law
enforcement control.
While I have tried to give the Committee the best answers to their
questions, I strongly caution--as I did consistently in my written and
oral testimony--that significant research is required to provide
adequate data on which to base supportable cases regarding
implementation of most of the NAS recommendations.
Although much of the focus in this response has been on federal
agencies, the majority of cases are processed by State and Local
agencies.
A thoughtful, well-researched strategic plan to propel the forensic
science community forward so that we all serve the justice system in
the manner in which it deserves is required.
The first step should be to require an independent study of the
funding and resource implications of the report recommendations, and to
produce a strategic plan for their implementation.
I know that the National Clearinghouse for Science Technology and
the Law, which I direct, has the capability and experience in bringing
together expert groups to be able to deliver such a plan in a timely
fashion.
Questions submitted by Chair David Wu
Q1. The Academy of Forensic Sciences (AAFS) has created an Education
Committee and Accreditation Board to review the quality of forensic
science education programs and current accreditation and certification
programs. What have been your findings?
A1. The AAFS established a Forensic Science Education Programs
Commission (FEPAC) in 2004 to review education programs.
FEPAC accredits forensic science education programs that lead to a
Bachelor's or Master's degree in forensic science or in a natural
science with a forensic science concentration. All programs that FEPAC
accredits are located within institutions that are accredited by a
regional accreditation organization.
The review function of FEPAC is to assess programs against
standards, and either grant or not grant recognition. There are
currently 25 programs that have applied for and received FEPAC
accreditation. The AAFS has estimated that there are 148 forensic
science programs offered by colleges or universities in the United
States.
Q2a. What is the level of funds the Federal Government currently
allocates to forensic science research?
A2a. There has been no study of all the funding resources covering all
federal agencies. However, the following describes the situation as
best as can be determined.
The only on-going source of general research funding in the
scientific aspects of forensic science is the National Institute of
Forensic Science (NIJ).
Funds for DNA research were $9.227M in 2008 (http://www.dna.gov/
funding/research-development/). Information about funding for non-DNA
research is not readily available as they are allocated on a year-to-
year basis depending on the level of funds available, including
Congressionally-directed funds.
Not all of the available discretionary funding is allocated to
forensic science research.
There is a National Academy Panel working on the topic of NIJ
research funding, with an expected reporting date of early 2010 (see
http://www8.nationalacademies.org/cp/projectview.aspx?key=48868,
Project Title ``Assessing the Research Program of the National
Institute of Justice''; Project scope includes ``1) What is the role of
NIJ in supporting and sustaining the Nation's scientific infrastructure
of crime and criminal justice research . . ..''
In general, only eight percent of requests to NIJ are supported.
Other agencies such as the FBI, BATF, DHS and DOD fund forensic
research on an ad hoc basis.
Q2b. What will the transitional issues be in changing from a mostly
experienced-based system to a rigorous scientific-based system?
A2b. This question is impossible to answer without extensive research,
as I described in my testimony to the House Subcommittee.
It is not known how many of the 17,000 or so law enforcement
agencies in the U.S. conduct some sort of forensic science testing,
such as latent print or firearms examinations.
Issues include: personnel qualifications; training and education,
grandfathering or waivers for non-science practitioners who can
demonstrate competency (which in turn begs the question of whether
there is a need to transition); national quality assurance standards;
and the rights of states to implement their own standards independent
of federal mandates.
Q3. What federal resources would be required to establish a National
Institute of Forensic Science?
A3. Australia has a national institute of forensic science with a
mandate similar to that proposed for NIFS in the NAS report.
The current fiscal year budget for NIFS Australia is $1.233M
Australian (http://www.anzpaa.org/pubs/ANZPAA%20Business%20Plan%202008-
2009.pdf) which is approximately $13.5M U.S. allowing for population
and currency exchange rates.
Questions submitted by Representative Adrian Smith
Prioritization of NAS Recommendations
Q1. Among the technical recommendations in the NAS report, what one or
two stand out to you as the highest priority, and why?
A1. There is no national prioritization of forensic science research
needs, identification of gaps and opportunities in anything other than
in short-term, ad hoc or narrowly focused ways.
Without a valid research program and strategy forensic science
cannot develop the sound knowledge base needed for training, education,
and service delivery that is needed to serve the justice system.
Prioritization of Research Needs
Q2. Has the forensic science community attempted to prioritize
research needs across various disciplines? If not, in your opinion what
areas of research are likely to contribute the greatest benefits to the
legal system through increased funding?
A2. Many forensic tests-such as those used to identify the source of
tool marks or bite marks--need to have additional, rigorous, scientific
research to prove their validity and reliability.
Proper and rigorous scientific studies must be performed and
published, which are tightly coupled to legal requirements that focus
on accuracy, validity and reliability, including the human component
(understanding human performance, bias, and human error).
Sources of error and limitations of each discipline and associated
methods have to be identified.
Answers to Post-Hearing Questions
Responses by John W. Hicks, Director, Office of Forensic Services, New
York State Division of Criminal Justice Services (Ret.); Former
Director, FBI Laboratory
Questions submitted by Chair David Wu
Q1. What is the level of funds the Federal Government currently
allocates to forensic science research? What will the transitional
issues be in changing from a mostly experience-based system to a
rigorous scientific-based system?
A1. With regard to current funding levels for forensic science
research, it is respectfully suggested that the federal budget may be
the most accurate and reliable source for this information.
Traditionally, the National Institute of Justice is recognized as the
primary agency supporting forensic science research by academic
institutions and other practitioners. In addition, research funding is
typically supported for agencies which operate forensic laboratories
such as the Federal Bureau of Investigation; the Drug Enforcement
Administration; the Bureau of Alcohol, Tobacco, Firearms and
Explosives; the United States Secret Service; the U.S. Postal
Inspection Service; and Department of Defense agencies. Research funds
usable for these purposes may also be available within and through the
National Institute of Standards and Technology.
With regard to your ``transition'' question above, I think it is
important to recognize that a sound scientific basis already exists for
much of the work performed by federal, State, and local forensic
laboratories--especially work performed under the discipline headings
of forensic DNA analysis, forensic analysis of controlled substances,
and forensic toxicology. In addition, work performed in other
disciplines to determine the chemical composition of materials
recovered from a crime scene such as explosives, paints, and polymers
is carried out using proven and well-established scientifically-based
analytical methods. Many of these laboratories are accredited by the
American Society of Crime Laboratory Directors/ Laboratory
Accreditation Board (ASCLD/LAB) under their ``Legacy'' or
``International'' programs of accreditation. Under these programs, the
laboratories must demonstrate that test methods in use are fully
documented and validated in order to maintain their accreditation
status.
As indicated in the recent report of the National Academy of
Sciences, there appears to be a need for independent review of
methodologies employed in the ``experience-based'' forensic disciplines
which rely in large part on pattern recognition and comparison
techniques such as those employed in the examination of fingerprints;
firearms and fired ammunition components; toolmarks; impression
evidence; hand writing; and crime-scene reconstruction. As indicated in
my testimony before the Subcommittee, I believe that data may exist
that could be subjected to further studies to bolster the scientific
underpinnings of the work being performed and provide greater assurance
for the courts in considering forensic evidence. In some areas, it may
be necessary to gather additional data for specific studies to address
questions that have arisen.
In my view, the most efficient, effective, and economical way to
accomplish the ``transitions'' where such a need is indicated is
through a coordinated effort by agencies already engaged in forensic
science research under the general guidance of a national advisory
board comprised of forensic science practitioners, research scientists
and academicians. Established Scientific Working Groups for the various
forensic disciplines would be engaged in this effort subject to the
general guidance of the national advisory board. The National Institute
of Standards and Technology has already demonstrated its core
competencies for this effort and should be given a primary role in
carrying out assessments of current methodologies and their supporting
data and in conducting detailed and rigorous scientific studies where a
need is indicated to further validate forensic methods. This process
should be sufficiently transparent to assure the courts of the general
acceptance and scientific validity of forensic techniques. It would be
important to provide expanded resources to support the development and
delivery of specialized training programs not only for forensic
laboratory personnel but also for the ``client'' groups that receive
their work product such as investigators, prosecutors, defense
attorneys and judges. As indicated in my testimony before the
Subcommittee, the forensic DNA experience provides a helpful and proven
model in this regard.
Q2. What federal resources would be required to establish a National
Institute of Forensic Science?
A2. I do not support the call for the creation of a National Institute
of Forensic Science. In my view, a separate federal agency would be
unnecessarily duplicative of well-established expertise, forensic
services, and resources now in existence in several federal agencies.
I also do not believe it is politically feasible or practical to
incorporate all activities that might be characterized as ``forensic''
under a single entity as has been proposed. For example, death-
investigation services as provided by Medical Examiners and Coroners
are typically and with rare exception conducted independent of and
apart from forensic laboratory operations as are other specialty
services such as ``forensic'' odontology (bite mark evidence), and Fire
Marshall activities in determining the cause and origin of a suspicious
fire. In addition, it is not clear that non-governmental forensic
practitioners (so-called private experts) who provide services in civil
matters or for criminal defense purposes would be included under the
scope and authority of a National Forensic Science Institute as
proposed.
Questions submitted by Representative Adrian Smith
Prioritization of NAS Recommendations
Q1. Among the technical recommendations in the NAS report, what one or
two stand out to you as the highest priority, and why?
A1. In my opinion, elements found in NAS recommendations #1, #3 and #10
should be given the highest priority.
As set forth under their recommendations #1 and #3, funding should
be directed at promoting scholarly, competitive peer-reviewed research
which addresses issues of accuracy, reliability, and validity in
forensic science disciplines. Funds should also be directed at
assessing the development and introduction of new technologies in
forensic investigations, especially technologies that improve the
detection and discrimination potential for materials typically
encountered at crime scenes and automation technologies which can be
applied to reduce evidence processing times.
Under the NAS recommendation #10, funding should be made available
for distribution to educational institutions and other appropriate
organizations to encourage the development and improvement of graduate
education programs in the forensic sciences. Funding should also
support continuing education programs for lawyers, judges, law
enforcement personnel, practitioners and other groups that are involved
in the collection of physical evidence or groups that utilize the
results of forensic analyses within the criminal justice system. Such
groups might include those involved in the medical treatment of victims
of crimes.
Prioritization of Research Needs
Q2. Has the forensic science community attempted to prioritize
research needs across various disciplines? If not, in your opinion what
areas of research are likely to contribute the greatest benefits to the
legal system through increased funding?
A2. I believe that steps have been taken within individual forensic
disciplines to identify research and developmental needs. Typically
these have been articulated through the various Scientific Working
Groups. As expressed in my written statement, I believe a national
advisory board comprised of representatives from the criminal justice
and crime laboratory communities, working with relevant professional
organizations, accrediting bodies and individual discipline scientific
working groups, would provide the best perspective for assessing and
assigning these priorities. This activity would be supported by a
closely coordinated effort among key federal agencies to include the
National Institute of Standards and Technology, the National Institute
of Justice and the Federal Bureau of Investigation.
Answers to Post-Hearing Questions
Responses by James C. Upshaw Downs, Forensic Pathologist/Consultant,
Coastal Regional Medical Examiner, Georgia Bureau of
Investigation
Questions submitted by Chair David Wu
Q1. What do you feel have been the institutional impediments that have
prevented a national vision for the forensic sciences? What about our
current infrastructure proves resistant to change?
A1. Impediments to change in forensics exist on multiple levels.
Inertia
Lumping (one size-fits all solutions)
Accreditation& certification
Resources/facilities
Massive unfunded mandate
Personnel
Training/continuing education
Caseload
Adversarial jurisprudence
Lack of sufficient information acquisition and transfer
First and most pervasive is inertia. A national resignation to the
status quo is defended with typical ``easy'' answers: insufficient
resources, lack of jurisdiction, lack of incentive, overwhelming case
loads, etc. The truth is that there is no ``system'' to change. The
present U.S. local, county, State, and federal jurisdictions have
different strategies for accomplishing the scientific analysis of
evidence and the presentation of same into the courts. Even as far
reaching a change as the Daubert decision by the Supreme Court of the
United States is not a national evidentiary standard. It does provide
guidelines to courts under the federal umbrella but is not directly
applicable across the board. Thus the legal precedent arguably
insisting that quality forensic work is a federal responsibility and
essential for justice is little more than a footnote in many areas.
``Injustice anywhere is a threat to justice everywhere.'' \1\
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\1\ Dr. Martin Luther King, Letter from Birmingham Jail.
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The reality is that, as was pointed out by the NRC report, the
forensic sciences have no champion to provide that vision for change or
a unified drive to implement and follow through on what is sure to be a
slow and trying process of updating. The NRC Committee recognized a
compelling to do things differently if we truly wanted substantive
change. Having carefully considered the issue over the course of years
and benefiting from numerous presentations by practitioners in numerous
sub disciplines, the diverse NRC Committee made this challenge their
first priority. The response to this, their paramount recommendation,
will determine just how ingrained the mindset of inertia is. Merely
complaining that change is needed does nothing to effect such change.
The need for a high-level champion for the needs of forensics is
obvious. The question then becomes where such best to locate the
oversight. Again, the committee specifically considered numerous
possibilities but these experts best advice was to start anew.\2\
Failing that, it would seem most logical that since we are talking
about the application of science to justice, the existing natural fit
would be within justice.
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\2\ Strengthening Forensic Science in the United States: A Path
Forward. National Academies Press. 2009.
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All the revisions in existing practice would have to take place
concurrently with continued case throughput. In many areas, crushing
backlogs in evidence analysis are albatrosses around a lab's neck.
Leadership to instill confidence in the personnel involved and in the
user agencies must occur in advance of and continue simultaneously with
implementation in order to achieve maximal success.
Although in practice the crime lab and Medical Examiner/Coroner
worlds intersect routinely, they are not by any stretch the same. As a
former State crime lab director, I fell qualified to address certain
large picture issues in that arena but would defer to a more
experienced active crime laboratorian in discussion of details and
certain other issues. In the area of death investigation, the
recognition of the important difference between the office of the
Medical Examiner and that of the Coroner must be kept in mind. Of
course, there is no national death investigation system at all. Every
one of the 50 states and all 3,000 counties operate differently--
sometimes dramatically so. Roughly half of the U.S. population is
served by a forensic pathologist-based (read scientifically founded)
investigation and half by an elected coroner-based (read little to no
training or background required) operation. If we are to truly reform
the medical practice of death investigation, it is essential to not
only recognize the inequity inherent in such a structure but to take
the step of doing something about it.
A brief digression into the history of the Anglo-based office of
Coroner may help to give perspective. References to a Coroner, charged
with death investigation, can be found as early as tenth century
England. In the twelfth century, the office was reinvented in order to
balance the national debt, owing to the ransoming of Richard the
Lionhearted from Austria. The office was staffed by a nobleman of means
in order to ensure that the then-corrupted office of Sheriff (viz.
Sheriff of Nottingham) was kept at bay. The office then remained
largely unchanged over the ensuing centuries until immigrating to the
colonies. In the worst present-day cases, the office of Coroner is
elected and requires no requisite training in death investigation at
all. The myth of a general physician or other medical personnel somehow
being better qualified seems to derive from the belief that since most
deaths are natural and since a general physician knows about natural
disease, they can triage the cases with the remainder being referred to
a more skilled Forensic Pathologist. The inherent flaw here is that it
assumes that persons with natural disease have died a natural death--
the Pygmalion effect in the extreme. Stagnation is comfortable. Since
the office of Coroner is generally elected and since ``all politics is
local''\3\ it may well continue prove to be difficult to eliminate an
office that has existed for over a millennium. In order to ensure
public health, national security, and justice roles, a national death
investigation system should be created to ensure all similar cases are
treated the same, regardless of jurisdiction. This can only happen with
a dramatic change in the status quo and with a, heretofore abdicated,
federal interest in the process. With a strategic plan to correct
extant jurisdictional iniquities, the office of the Coroner can be
absorbed into a professional medicolegal death investigation system
wherein the local (city, county, region, or State--depending on
population and needs) director is a board-certified Forensic
Pathologist. The Coroner would become a skilled paraprofessional tasked
with referral of appropriate cases for evaluation by the specialist.
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\3\ U.S. Rep. Tip O'Neil by http://www.riverdeep.net/current/2000/
10/103000-politic.jhtml
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All of the changes called for by the study are going to require
significant funds to accomplish the goals spelled out. Unfortunately,
especially in the present economy, such a massive unfunded mandate
calling on locals to eliminate a system largely recognized to be
working will be a tough sell. The NIFS would be an important component
in getting nationwide compliance.
Another impediment is the seeming metastasis of the courtroom's
adversarial system into the forensics laboratory. While there have
clearly been some high visibility failures, the fact that we have
recognized and corrected issues in the past speaks to the fundamental
fairness and confidence we should have in practitioners. Just as other
non-forensic sciences have weathered the storms of unethical
practitioners and faked research, so has the forensics world.
Regardless of specialty, practitioners should have no agenda in
conducting their analyses other than finding immutable scientific
facts. As a practical matter it makes sense to assign forensic
laboratories to work closely with justice-related agencies. The reality
is that the unquestioned biggest user of forensic services is law
enforcement. Although unheralded by some, these results are oft used to
exclude individuals and to avoid prosecutions. Some argue an inherent
bias in such a relationship but as the NRC committee clearly
recommended (is carefully edited out of the commentary by many) is that
forensic labs should be operationally autonomous\4\ from law
enforcement agencies. This does not mean removed from same. In point of
fact, too great an independence can bring its own very real problems.
Despite media popularity, television ratings have never really equated
with budget numbers. Especially in trying economic times, a free agent
crime lab or Medical Examiner/Coroner may find it difficult to compete
for funding.
---------------------------------------------------------------------------
\4\ Strengthening Forensic Science in the United States: A Path
Forward. National Academies Press. 2009.
---------------------------------------------------------------------------
An important and little recognized issue is the marked differences
between crime laboratories and Medical Examiner/Coroner operations.
Further, within the latter, the differences between Medical Examiners
and coroners range from vast to none--in short, there is no one-size-
fits all answer, off-the-shelf answer. Were there, the NRC committee
would have called for same. Instead, the loud and clear message of the
panel was ``we need change, we need it now, it will be expensive, and
we need guidance.''
Accreditation and certification should go a long way to ensuring
requisite neutrality and checks and balances. Practitioners of a craft
are in a much better position to address the particular scientific
expectations and needs of a specific discipline--one would not want a
Forensic Pathologist (unless, perhaps one uniquely skilled in that
discipline) advising a trace evidence analyst how to conduct an assay
any more than one would think the reverse a good plan. As such, lab
accreditation should be spearheaded by groups such as the American
Society of Crime Laboratory Directors--Laboratory Accreditation Board
to expand.
We are creating an artificial distinction in the forensic sciences
in the over-emphasis of the forensic component and not enough on the
science. In short, science is science. A theory is developed,
experiments conducted, results obtained, and an interpretation is made.
The difference is that in the forensic world, the test results and
opinions related thereto are often used in court proceedings (although
oftentimes they are used to avoid taking a matter to trial). Skeptics
argue that this raises the bar on these test results because in the
courtroom, someone's life, liberty, and/or livelihood are at stake.
What they fail to mention is that this is no different from scientific
endeavors in other fora. A medical test may determine if medication is
given and if that medicine will save or take a life. An incorrect
engineering test can result in catastrophic design failure and untold
loss of life.
Fundamentally, if we are to trust a laboratorian, we have to bestow
that trust. The qualifications and ethics of the practitioner must be
assured in advance. For example, in the medical model, clinical
pathology labs are expected to receive national accreditation--usually
a prerequisite for reimbursement. The Clinical Laboratory Improvement
Act (CLIA) some two decades ago sought to assure the public of such
baseline confidences:\5\
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\5\ http://www.cms.hhs.gov/clia/
The Centers for Medicare & Medicaid Services (CMS) regulates
all laboratory testing (except research) performed on humans in
the U.S. through the Clinical Laboratory Improvement Amendments
(CLIA). In total, CLIA covers approximately 200,000 laboratory
entities. The Division of Laboratory Services, within the
Survey and Certification Group, under the Center for Medicaid
and State Operations (CMSO) has the responsibility for
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implementing the CLIA Program.
The objective of the CLIA program is to ensure quality laboratory
testing. Practitioners are expected to achieve individual certification
in their respective disciplines--again an important assurance of
laboratory excellence.
The lab accreditation model, although not universal, is well-
accepted in the crime lab world, with upwards of 80 percent of publicly
funded crime labs accredited.\6\ In the Medical Examiner world, there
has been significantly less achievement of this benchmark, with only
60 accredited sites.\7\ Coroner operations vary so dramatically across
the country that only a handful has achieved.\8\
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\6\ http://www.reuters.com/article/pressRelease/idUS238414+29-Jul-
2008+PRN20080729
\7\http://thename.org/
index.php?option=com-content&task=view&id=67&Itemid=69
\8\ http://theiacme.com/iacme/accreditation.aspx
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Again to the medical model--in many areas, the Medical Examiner's
office falls under a medical university. Such hospitals are tertiary
care and training centers, seeing the most complicated patients while
training tomorrow's physicians how to treat them. Regrettably, in many
cases, the outcome not surprisingly is bad. In such cases falling under
Medical Examiner jurisdiction (a fairly sizable percentage), the
medicolegal autopsy examination is conducted by employees of the same
hospital who will later be sued for malpractice in the death of the
patient. There is simply no reasonable alternative, as the paucity of
Medical Examiners assures no other qualified practitioners within a
given area. As a result, some might question the veracity of the
Pathologist's conclusions due to the ``obvious bias'' in such
circumstances. With sufficient checks and balances assured by
accreditation, certification, peer review, continuing quality
improvement, and enforced ethical canons such issues are disposed of
routinely as a matter of course. Challenges come when some may not like
the outcome of the report, as is to be expected. Certainly serious
allegations of wrong-doing should be investigated thoroughly,
completely, and impartially but no more so than in any other arena. The
first step to ensure confidence in the practice of forensic sciences is
to require the accreditation and certification which will mandate a
system of checks and balances is in place.
The lack of available recent data regards the overall needs and
status of the Nation's forensic services providers makes a compelling
case for one of, if not the most, important impediments. Annual
practitioner needs assessments should be conducted to determine what
those actively engaged in the profession need in terms of education/
training, equipment, facilities, staffing, research, and other
resources. Such information is simply unavailable at present.
Q2. What is the level of funds the Federal Government currently
allocates to forensic science research? What will the transitional
issues be in changing from a mostly experience-based system to a
rigorous scientific-based system?
A2. Ascertaining the present level of federal funding to all forensic
matters is beyond my ability, as it was beyond the NRC committee's.\9\
Based on the 2009 budget, some observations can be made. Total federal
research includes, ``. . . $151.1 billion in federal R&D, an increase
of $6.8 billion or 4.7 percent above the FY 2008 estimate. As a result,
every major R&D funding agency will receive an increase greater than
the expected rate of inflation, and in many cases the final FY 2009
numbers are larger than the budget request submitted by the previous
administration . . ..'' \10\ In the fiscal year 2009 year, the Office
of Justice Programs is appropriated $156,000,000 for DNA related and
forensic programs and activities, specifically include through the
National Institute of Justice $151,000,000 for DNA analysis and
capacity enhancement program; $5,000,000 for the Post-Conviction DNA
Testing Program; and $25,000,000 for Paul Coverdell Forensic Science
Improvement Grants.\11\ Thus 0.1 percent of the total federal research
money goes to ALL the forensics needs. By way of comparison, the budget
includes $125,471,000 for the National Center for Complimentary and
Alternative Medicine and $134,344,000 for the Center for Veterinary
Medicine.\12\ There is absolutely no assurance that any of this money
will go to practitioner or end-user driven targeted research or that
research done in Defense or similar areas will be made available as
deliverables to the locals involved in forensic practice. In general, I
believe a budget analyst would have to research the question in depth
to be more precise than that.
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\9\ Strengthening Forensic Science in the United States: A Path
Forward. National Academies Press. 2009.
\10\ http://www.aaas.org/spp/rd/fy09.htm
\11\ H.R. 1105, One Hundred Eleventh Congress of the United States
of America.
\12\ H.R. 1105, One Hundred Eleventh Congress of the United States
of America.
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In my specialty of medicolegal death investigation, the numbers are
much easier to find. I believe the answer is basically none. The only
funding stream open to Medical Examiners is the $25,000,000 Coverdell
grant program--but it must be remembered that this pot is distributed
across the board to all states via formula grants and a small portion
for competitive grants--none of which are designated specifically to
research. Arguably, some programs such as the Violent Death Reporting
System impact the Medical Examiner/Coroner world, but not in terms of
research directly applicable to the practice of the craft. The Bureau
of Justice statistics did analyze the status of the country's Medical
Examiners/coroners for the first time ever in 2005\13\ but again this
fact-finding assessment is hardly useful applied science research.
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\13\ http://www.ojp.gov/bjs/abstract/meco04.htm
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Medical Examiners have long clamored for increased funding in the
field. True, a proportion of the U.S. Medical Examiners are affiliated
with Medical Schools and may get small research stipends through such
associations but these amount to basically to little more than slightly
expanded basic service provisions (for example histology slides,
chemical analyses, etc.). Serious questions such as the rates of and
differences in wound healing, injury mechanisms in shaken/impact
syndrome cases, and radiologic-clinical-pathologic correlation abound.
The low fruit is remains and is easy to pick.
Personally speaking, I have never received federal dollars for
research nor am I familiar with any Medical Examiner who has received
such monies. In fact, despite being actively engaged in research
throughout my career, I have only received a one-time, $1000 stipend to
employ a medical student one summer to compile case data for me.
Everything else I have done, including ongoing very expensive CT and
MRI studies in child abuse cases, has relied exclusively on the charity
of others. This is hardly a basis on which to build a system. Consider
that of the in excess of $151 billion in federal research and
development, millions are spent on medical research alone\14\ and none
on medicolegal death investigation. The potential for improvement here
is obvious and the cost should be remarkably cheap.
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\14\ H.R. 1105, One Hundred Eleventh Congress of the United States
of America.
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As for transitional issues, movement to a more science-based system
presumes the system in question lacks a scientific basis. Medicolegal
death investigation, properly conducted, is headed by a board-certified
physician specializing in the medical science of forensic pathology.
The major issue in transition would then relate to bringing lesser
systems ``up to code.'' This would mean redefining the role of lay
Coroners who presently serve roughly half the U.S. population and
ensuring in all cases a qualified physician is not only available to
but responsible for each local jurisdiction.
Issues would relate to the inadequate numbers of board certified
Forensic pathologists available to assume such a role. Given the
present numbers of active full-time practitioners (estimated at 400) we
would have to double the number of newly-minted practitioners from the
present of slightly less than 40 to 80. Recruiting and finding the
resources for doubling the population in question then become related
issues. Replacing the office of coroner, as called for by the NRC
Committee, would require several matters be dealt with. As the Coroner
is an elected and/or constitutional office, the relevant laws would
have to be changed. Appropriate new law would need to be enacted (such
as the Model Post Mortem Examinations Law proposed by the National
Association of Medical Examiners\15\ ). Acceptable interim procedures
and practices would need to be formulated. Adequate facilities,
resources, and support would need to be put in place at the regional
and/or local levels to handle a dramatically increased workload at
whichever level would be involved. Additional costs for storage,
transport, and processing of remains would be incurred regardless of
which model system were established. The eventual fate of the office of
Coroner would need to be decided--either fading into the annals of
antiquity or revision into a scientifically trained medicolegal lay
investigator.
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\15\ http://thename.org/
index.php?option=com-content&task=view&id=97&Itemid=41
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Arguably some other forensic disciplines are on clearly less solid
footing. In the vast majority of forensic sciences as a whole, the
laboratorians' efforts began as scientific endeavors to answer specific
questions. The system is really built more on applied science answering
targeted questions than systematic research as many other applications
practice. Some issues can be anticipated to be similar to those faced
in medicolegal death investigation--facilities, resources, and
personnel--while maintaining active case throughput. Incumbent with
such a dramatic increase in staff and labs would require sufficient
accreditation and certification opportunities to keep up with the
increased dramatically demand for same, if the recommendation to
require accreditation and certification. Others areas of concern might
include actual prioritization/conduction of research and translation
from the theoretical to the practical. Obviously, the oversight of such
an undertaking would be important--who will, without bias, ensure
compliance with regulations is uniform across the board. The NRC
assigned the duty to their chief recommendation, the National Institute
of Forensic Sciences.
Acceptance of all the foregoing is assumed by those directly
involved at various levels in the affected systems. Given the track
record, as relates to the existing system, this may a pipe dream.
Without strong, public, and broad support for the suggested
improvements, there is little reason to believe that the net result
will be anything but the same.
Another issue would be understanding of and acceptance of the new
system by users of the services. All the change would be for naught if
the adversarial system of the courtroom failed to accept them. There is
precious little reason to believe that the actual test results will
dramatically differ from those presently achieved. Those same present
results that we know from years of experience are valid, although
dismissed by some (to whom the data are unfavorable) as somehow flawed,
will remain valid. The interpretations of results, as presented in
courts, will remain inclusionary to some accused and exclusionary to
those many who do not make it to trial. Without addressing the undue
influence of the adversarial legal system on the reportage of
scientific testing, there can be little hope of a better outcome. The
bias inherent in a system where (almost uniformly) the prosecution must
use an accredited lab and a certified scientist because they are
already employed for that specific purpose and therefore the
prosecution cannot afford to solicit multiple persons for the purpose
of proving a case the crime lab's own scientist said there wasn't one.
Such extravagance is not a wise use of limited tax dollars. The defense
argues it must use the same crime lab already extant and when the
result is not to their liking, argues by insinuation that the analysis
is somehow biased or flawed but such ad hominem attack amounts to
nothing more than empty words. Expert shopping, an option chiefly
available to the defense which is free to use whatever engaged
report(s) favor their position while conveniently never disclosing the
many more support the prosecution's case, must end. Some will protest
loudly that such a fundamental change in their ability to seek out
qualified professionals jeopardizes their ability to represent their
position. Such an argument is easily overcome if all solicited expert
reports--on both sides--are automatically allowed, regardless of
outcome. In my opinion, this would be one of the most difficult issues
to address if we are to effectively modify our system.
Q3. What federal resources would be required to establish a National
Institute of Forensic Sciences?
A3. The NRC Committee said of the proposed NIFS:
``The forensic science system, encompassing both research and
practice, has serious problems that can only be addressed by a
national commitment to overhaul the current structure that
supports the forensic science community in this country. This
can only be done with effective leadership at the highest
levels of both Federal and State governments, pursuant to
national standards, and with a significant infusion of federal
funds.'' \16\
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\16\ Strengthening Forensic Science in the United States: A Path
Forward. National Academies Press. 2009.
``The forensic science enterprise needs strong governance to adopt
and promote an aggressive, long-term agenda to help strengthen the
forensic science disciplines. Governance must be strong enough--and
independent enough--to identify the limitations of forensic science
methodologies, and must be well connected with the Nation's scientific
research base to effect meaningful advances in forensic science
practices. The governance structure must be able to create appropriate
incentives for jurisdictions to adopt and adhere to best practices and
promulgate the necessary sanctions to discourage bad practices.'' \17\
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\17\ Ibid.
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The resources existing within the Federal Government can be
expected to include the Department of Justice; the National Institute
of Justice; the Federal Bureau of Investigation, the Bureau of Alcohol,
Tobacco, and Firearms; the Office of the Armed Forces Medical Examiner;
The National Institute of Standards and Technology; the Department of
Defense; the Department of Health and Human Services; the Drug
Enforcement Administration; the National Science Foundation; the
National Academy of Sciences; the Institute of Medicine; the Library of
Medicine; the Department of Homeland Security; and other agencies.
The financial resources can be anticipated to be substantial. I
have no experience in the federal funding world and fell uncomfortable
trying to predict how these existing entities might use their resources
towards the forensics effort.
Questions submitted by Representative Adrian Smith
Prioritization of NAS Recommendation
Q1. Among the technical recommendations in the NAS report, what one or
two stand out to you as the highest priority, and why?
A1. Although the NRC committee charged with studying the issues advised
against separating the initiatives or emphasizing one to the exclusion
of others, the reality is that such a broad-reaching revision of such a
far-reaching vision may not be easily achieved without dividing the
response. Ideally all the recommendations should proceed simultaneously
on their own intersecting paths. If we separate the component proposals
and attempt to sort by category, the recommendations can be simplified
to address: accreditation/certification, education/training, research,
oversight, and medicolegal death investigation.
Professionally, I am keenly aware of the many needs of the Medical
Examiner/Coroner system nationally, however, I believe the greater good
is served in addressing two issues which would arguably have the most
impact the most quickly--accreditation/certification and research.
Accreditation of existing labs is a seeming daunting task given the
lack of existing investment in the process. The good news is that this
should be much easier to achieve than many fear because a sizable
percentage of State crime labs already have accreditation. Other labs
are typically small and I believe lack of a concerted effort is likely
the biggest sticking point in moving to full accreditation. I can speak
from the personal experience as the former director of a State crime
lab system with 175 employees who oversaw a 10 lab operation spread
across a broad geographic territory go from zero to full accreditation
in basically two years. There were naysayers early in the process,
especially since there were basically no new State funds set aside for
the effort. This can only be overcome by achieving buy-in from staff
first, followed by users. The mantra must reflect a philosophy that
``one does not strive for mediocrity.'' This case example of how to
achieve success though one's own efforts reflected well of an excellent
staff but credit for the financial aspects must be given to the
National Institute of Justice, who, working through the National
Forensic Science Technology Center and other partners within the
Forensic Resource Network (Marshall University) showed that indeed the
impossible can be achieved if one merely sets the bar high enough and
settles for no less than the best. A relatively small financial
investment continues to pay massive dividends. Top management must
aggressively pursue the goal if the mission is to succeed.
Employee certification is a slightly more difficult matter as a
smaller percentage of crime lab personnel already possess the requisite
background. As this is a personal achievement, there may be policy
requiring revision in some areas to allow governmental employers to
require and/or fund this credentialing process. In some disciplines,
there may need to be special provision made to ``grandfather in''
existing scientific personnel. Another obstacle would be the strain the
volume of scientists requiring certification would place on the
existing system.
In the area of death investigation, the present status of
accreditation and certification are to a certain extent reversed for
physicians and minimal to none for large numbers of lay coroners. Some
85 percent of pathologists active in the field have Pathology boards
and 75 percent sub-specialty certification.\18\ All have the requisite
physician training. Professional practice standards have been
promulgated. Only a minority of existing Medical Examiner facilities
have achieved accreditation. Usually this shortcoming relates to
insufficient resources, staff, or facilities. Regardless, the root
cause would need to be addressed. Lay coroners have only a handful of
operations (eight total\19\ ) achieving any formal accreditation.
Formalized recognition of basic skills is available through the
American Board of Medicolegal Death Investigation,\20\ however, this
has been primarily achieved by lay investigators employed by Forensic
Pathologists. If the coroners were to achieve the necessary training to
obtain this credential, it should dramatically improve death
investigation in the affected jurisdictions--up to half the U.S.
population.
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\18\ Executive Director, National Association of Medical Examiners.
\19\ http://theiacme.com/iacme/accreditation.aspx
\20\ http://medschool.slu.edu/abmdi/index.php
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Both certification and accreditation would ultimately serve to
provide confidence in the fairness of the analyses being conducted and
impartiality and qualification of the analyst. Structures are presently
in place for both, however, the stress of scale may well overburden the
existing process. Advantages of the professionalization of the practice
and the practitioner in the achievement of these goals would include
adoption of ethical codes and continuous quality improvement as part of
the criteria for the standard.
The other issue of utmost concern would be validation of the
underlying science. As there are individuals presently incarcerated or
awaiting trial, personal liberty is at stake. Despite the foundation of
all forensics in the underpinnings of science, the focus has not been
sufficiently broad. In order to confirm what experience tells us is
valid and to restore full confidence by the users in the truth and
accuracy of the system, sufficient validation should be aggressively
pursued in those areas most often used and most often challenged.
Prioritization of Research Needs
Q2. Has the forensic science community attempted to prioritize
research needs across various disciplines? If not, in your opinion what
areas of research are likely to contribute the greatest benefits to the
legal system through increased funding?
A2. I do not believe there has been anything approaching a national
plan on forensics research. The field really originated by conducting
targeted experiments to answer case-specific questions. The tradition
basically continues to the present day, although obviously there has
been more extensive research conducted through the years. Another
benefit of the proposed NIFS would be to ensure such a strategy were
created and implemented.
Specifically regards the research likely to be most cost-effective
most quickly would be validation of pattern-type forensic disciplines
(fingerprint analysis, footwear impression comparison, firearms
examination, document analysis, etc.). Another important area would be
to expand preliminary work done on bias and see the extent to which it
actually could impact a case. It is imperative such research on bias
not be biased itself--if conducted with an eye to ``proving'' bias by
governmental labs, a much more obvious potential bias (solicited
contract forensic analysis) might be overlooked, creating an illusion
that one is a problem while the other is not. Individuals involved in
such research should absolutely have no real or perceived bias which
might adversely impact the outcome of the studies.
Answers to Post-Hearing Questions
Responses by Peter J. Neufeld, Co-Founder and Co-Director, The
Innocence Project
Questions submitted by Chair David Wu
Q1. What is the level of funds the Federal Government currently
allocates to forensic science research?
A1. The Federal Government allocated $106 million to DNA related
forensics programs in 2008 the bulk of which went to DNA backlog
reduction. Non-DNA forensic program spending by the Federal Government
in 2008 has not yet been calculated, but in 2007 that amount was $16.5
million.
Of the money spent on DNA, approximately $9 million was allocated
for research. Little to none of the non-DNA forensic funding is spent
on research; the Coverdell Forensic Science Improvement Grant Program
awards grants primarily to eliminate backlogs and to train and employ
forensic laboratory personnel.
Q2. What will the transitional issues be in changing from a mostly
experienced-based system to a rigorous scientific-based system?
A2. In order to transition forensic sciences to a rigorous science-
based system, basic and applied research on the validity and
reliability of assays, technologies, and devices will need to be
conducted by an independent, science-focused federal agency. After this
research is completed, standards for methodology, reporting procedures,
and court testimony will need to be developed and implemented so that
all assumptions made, conclusions reached, and inferences drawn by
forensic science expert witnesses will be supported and confirmed by
research.
For forensic practitioners, the greatest transitional issues will
involve continuing education, training, and professional development so
that they can meet certification requirements in the fields in which
they conduct examinations. As the research evolves in each discipline,
so too will the guidance on how evidence is presented and how the
forensic practitioners can testify in court.
For public crime laboratories, the greatest transitional issues
will involve accreditation to the ISO 17025 level. While most publicly-
funded crime laboratories are accredited, the majority of crime labs
are not accredited to this more rigorous international standard. States
and localities will also need to be encouraged to make their crime
laboratories independent of law enforcement agencies to ensure a
working environment free of external pressures and bias.
Finally, on an immediate and ongoing basis, significant and
continuous educational programs about the report's findings regarding
non-DNA forensic assays, devices, and technologies and their
limitations needs to be conducted for judges and criminal
practitioners, and updated as the research progresses.
Q3. What federal resources would be required to establish a National
Institute of Forensic Science?
A3. Many of the ``pieces'' required for a National Institute of
Forensic Science (NIFS) exist in the Federal Government today. The
National Science Foundation and the National Academy of Sciences have
experience in competitive grant-making and have existing relationships
with research universities and bodies to whom such grants would be
made. Once the research is completed, standard setting could be done by
the National Institute of Standards and Technology. Lastly, the
compliance and enforcement needs could be handled internally at NIFS
and/or in cooperation with other law enforcement entities. NIFS could
be modeled after the lean and flexible regulatory body that administers
the Clinical Laboratory Improvement Amendments (CLIA) at the Centers
for Medicare & Medicaid Services. CLIA oversees all clinical laboratory
diagnostic testing in the United States and employs just 27 people in
their administrative office and 30 employees over 10 regional cities
across the Nation.
Questions submitted by Representative Adrian Smith
Accreditation
Q1. Mr. Neufeld, you emphasize in your testimony the importance of
laboratory accreditation to ensuring quality control, and Mr. Marone
noted that the overwhelming majority of crime labs used by prosecutors
are now accredited. Does the Innocence Project also make sure to
support work only from accredited labs? Why or why not?
A1. The National Academy of Sciences' (NAS) report on Strengthening
Forensic Science in the United States' seventh recommendation\1\ is for
the mandatory accreditation of all crime laboratories and the
certification of all practitioners.
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\1\ Strengthening Forensic Science in the United States: A Path
Forward, Committee on Identifying the Needs of the Forensic Science
Community, The National Academies Press (2009), p. 7-18.
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It is critical, however, that the existing, voluntary accreditation
standards are assessed for strength and reliability. The largest crime
laboratory accreditation organization in the United States, the
American Society of Crime Laboratory Directors Laboratory Accreditation
Board, accredit 362 laboratories (the majority of which are publicly
funded). However, only 80 of their laboratories are accredited under
their ``international'' program--the higher tier of crime lab
accreditation that is most compliant with the international standard,
ISO/IEC 17025. That program notably omits three important elements that
are present in its lower tier accreditation program: (1) blind
proficiency testing, (2) requirements for safety equipment and the
physical design of the lab, and (3) requirements for written
objectives.
The NAS report also notes that, ``[a]ccreditation is just one
aspect of an organization's quality assurance program, which also
should include proficiency testing where relevant . . .. In the case of
laboratories, accreditation does not mean that accredited laboratories
do not make mistakes, nor does it mean that a laboratory utilizes best
practices in every case, but rather, it means that the laboratory
adheres to an established set of standards of quality and relies on
acceptable practices within these requirements.\2\ . . . Accreditation
cannot guarantee high quality--that is, it cannot guard against those
who intentionally disobey or ignore requirements.'' \3\
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\2\ Ibid., p. 7-2.
\3\ Ibid., p. 7-3.
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In fact, past allegations of negligence or misconduct filed under
the federal Coverdell program have included accredited laboratories.
Consequently, there is a need to assess the strength of current
accreditation standards and to make sure make sure that the standards
reflect best practices and are as stringent as they can be. Moreover,
for the solo or two person laboratory, current accreditation
requirements may be unduly burdensome. It is certainly possible that
NIFS would make the accreditation requirements more rigorous on matters
that affect reliability of results yet more accessible for the
excellent but very small forensic laboratories.
The Innocence Project typically engages accredited laboratories for
conducting post-conviction DNA testing in their cases. At times--
particularly when more advanced testing on minute samples is required--
a two person laboratory that has not applied for accreditation,
Forensic Science Associates (FSA), has provided more reliable results
than the accredited laboratories. Indeed, Mr. Marone is personally
familiar with the extraordinary high quality work accomplished by FSA.
In the Earl Washington DNA exoneration, the initial post-conviction DNA
typing was conducted by Virginia's ASCLD-LAB accredited State forensic
laboratory. Subsequent testing was conducted by FSA. Not only did the
FSA results contradict the Virginia State lab results but FSA concluded
that the State lab had reached an erroneous conclusion. When the then
director of the State lab refused to conduct a meaningful investigation
of what went wrong or even acknowledge that an error had been made, the
Governor asked ASCLD-LAB to intervene and conduct an external
investigation. ASCLD-LAB's report, which I attach to this document,
confirmed that FSA's results were both correct and reliable and that
the accredited Virginia laboratory had indeed made a serious error.
Nevertheless, within days of that report, ASCLD-LAB re-accredited the
Virginia State lab, without so much as a comment on the impact of its
own highly critical external investigation in the Earl Washington case.
Admission of Evidence
Q2. Mr. Neufeld, you state in your testimony that ``it is absolutely
clear--and essential--that the validity of forensic techniques be
established `upstream' of the court, before any particular piece of
evidence is considered in the adjudicative process.'' Based on the NAS
report findings then, are you calling for courts to deny admission of
forensic evidence from all disciplines except DNA analysis? If so, do
you think that will improve the justice system's ability to convict the
guilty and protect the innocent?
A2. It is not the job of judges and lawyers to become scientific
experts, and hardly a responsibility we can place on the shoulders of a
jury. This is the reason why clarifying the specific reliability of all
such evidence and the parameters for testifying on such evidence are so
critical to the administration of justice. When forensic evidence
enters the courtroom, it should be sound and not used beyond its
demonstrated scientific limits. The NAS report states ``with the
exception of nuclear DNA analysis, however, no forensic method has been
rigorously shown to have the capacity to consistently, and with a high
degree of certainty, demonstrate a connection between evidence and a
specific individual or source.'' \4\
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\4\ Ibid., p. S-5.
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The Report divides forensic disciplines into laboratory-based and
experience-based disciplines. Laboratory-based disciplines such as
``DNA analysis, serology, forensic pathology, toxicology, chemical
analysis, and digital and multimedia forensics--are built on solid
bases of theory and research.\5\ The level of scientific development
and evaluation varies substantially among the forensic science
disciplines.'' \6\ Some experience-based disciplines (fingerprint
analyses) have had the support of more dedicated research in the past
compared to other experience-based disciplines (lip print, ear print
comparisons\7\ ). Secondly, experience-based disciplines suffer from
the same problem--``A body of research is required to establish the
limits and measures of performance and to address the impact of sources
of variability and potential bias. Such research is sorely needed, but
it seems to be lacking in most of the forensic disciplines that rely on
subjective assessments of matching characteristics.'' \8\
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\5\ Ibid., p. 5-1.
\6\ Ibid., p. S-5.
\7\ Ibid., p. S-6.
\8\ Ibid., p. S-6.
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This strongly suggests that non-DNA forensic evidence should not be
used to individualize in the courtroom, and the entire criminal justice
system would be well served by respecting this fact as soon as
possible. This is not, however, to say that non-DNA forensic evidence
has no place in the courtroom, nor to say that there should be a rule
or rules immediately imposed upon courts to ban all such evidence. The
report offers no judgment about closed or pending cases and instead
offers forward looking recommendations for the future of forensic
science. We agree with the report. Indeed, each case, post-conviction
or pending, must be considered on its own merits.
Prioritization of NAS Recommendations
Q3. Among the technical recommendations in the NAS report, what one or
two stand out to you as the highest priority, and why?
A3. Aside from the NAS report's primary recommendation to create a
National Institute of Forensic Science, the two priority
recommendations for the forensic community should be funding research
(Recommendation #3 and #5) and developing standards from that research
(Recommendation #6). In competitively funding peer-reviewed research to
establish validity and reliability of the non-laboratory-based forensic
disciplines, Congress would be applying and requiring the same
scientific principles and processes for validation that had been
utilized so successfully for forensic DNA. Once the research has been
satisfactorily completed and the technique, method or assay validated,
then standards must be developed so that reliable procedures and
practices can be provided to the forensic examiners in a shovel-ready
format.
Prioritization of Research Needs
Q4. Has the forensic science community attempted to prioritize
research needs across various disciplines? If not, in your opinion,
what areas of research are likely to contribute the greatest benefits
to the legal system through increased funding?
A4. In terms of prioritizing research, I can't speak for the forensic
science community. To date, the non-DNA forensic science community has
had to use virtually all of the funding it receives for addressing
backlog issues and funding laboratory needs. In the past, there has
been little time and virtually no money available for research efforts.
Previous needs assessments, The U.S. Department of Justice report,
Forensic Sciences: Review of Status and Needs (February 1999 and the
American Society of Crime Laboratory Directors' 180-Day Study Report:
Status and Needs of United States Crime Laboratories (May 2004) did not
prioritize the research needs in the forensic sciences intended to spur
the change in practice that the NAS report deems essential to justice.
It is the Innocence Project's position that areas of research should be
prioritized by areas of greatest needs. We look forward to working with
Congress to find a way to assess this prioritization.
Appendix 2:
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Additional Material for the Record