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“Strength­en­ing Foren­sic Sci­ence in the United States “;
Tes­ti­mony by Peter Neufeld, Co-Director, The Inno­cence Project, New York, NY

Thank you Chair­man Leahy, Rank­ing Mem­ber Ses­sions, 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, while at the same time enhanc­ing pub­lic safety. I am extremely pleased to par­tic­i­pate in this hear­ing review­ing the rec­om­men­da­tions and con­clu­sions of the National Acad­e­mies of Science’s (NAS) report Strength­en­ing Foren­sic Sci­ence in the United States: A Path For­ward. I am grate­ful for the invi­ta­tion to tes­tify before you today to share how faulty foren­sic sci­ence has impacted the work of the Inno­cence Project and our response to the NAS report.

The Inno­cence Project, the law enforce­ment com­mu­nity, pros­e­cu­tors, and mem­bers of this com­mit­tee all share the same core beliefs — that wrong­ful con­vic­tions are con­trary to the basic prin­ci­ple of crim­i­nal jus­tice; that foren­sic sci­ence plays a vital role in solv­ing crime; that many foren­sic dis­ci­plines are in need of fur­ther valid­ity and reli­a­bil­ity research; and that valid and reli­able foren­sic analy­ses will strengthen pros­e­cu­tions, assist law enforce­ment in inves­ti­ga­tions, and improve pub­lic safety by ensur­ing that the true per­pe­tra­tors of crime are iden­ti­fied and pun­ished. We are proud to have col­lab­o­rated fre­quently with police and pros­e­cu­tors to iden­tify and pros­e­cute the real per­pe­tra­tor. The first pri­or­ity of our work and our advo­cacy has always been enhanc­ing the truth seek­ing func­tion and reli­a­bil­ity of crim­i­nal jus­tice, which in turn advances the cause of pub­lic safety.

The devel­op­ment of DNA test­ing has allowed the Inno­cence Project to help exon­er­ate 242 fac­tu­ally inno­cent Amer­i­cans — 17 of whom were on death row await­ing exe­cu­tion. These 242 exonerees rep­re­sent how the Amer­i­can crim­i­nal jus­tice sys­tem can fail the peo­ple she was designed to pro­tect. Once exon­er­ated, we then decon­struct the wrong­ful con­vic­tions look­ing for com­mon causes while dis­tin­guish­ing “one off” sit­u­a­tions. Our research into these wrong­ful con­vic­tions yielded a stun­ning insight: unval­i­dated and/or improper foren­sics was the second-greatest con­tribut­ing fac­tor to those mis­car­riages of jus­tice. Those cases demon­strate what the mem­bers of the NAS com­mit­tee unan­i­mously rec­og­nized: that the lack of sci­en­tific under­pin­ning in com­monly used non-DNA foren­sic sci­ence has the sig­nif­i­cant poten­tial to mis­lead the crim­i­nal jus­tice sys­tem away from the real per­pe­tra­tors of crime.

When a crime’s true per­pe­tra­tor is not iden­ti­fied, com­mu­ni­ties are less safe: among the first 241 post-conviction DNA exon­er­a­tions nation­wide, the real per­pe­tra­tors were iden­ti­fied in 105 cases. In many of those cases, the real per­pe­tra­tor had gone on to com­mit addi­tional vio­lent crimes while an inno­cent per­son was in prison. These per­pe­tra­tors were con­victed of at least 90 seri­ous, vio­lent crimes — includ­ing 56 rapes and 19 mur­ders — that they com­mit­ted after inno­cent peo­ple were con­victed for their ear­lier crimes. Many more were impli­cated in vio­lent crimes but were never con­victed because the statute of lim­i­ta­tions on the crime had run out. Each one of these rapes, mur­ders and other vio­lent crimes could have been pre­vented if law enforce­ment had the tools to iden­tify the cor­rect sus­pect in the first place.

Although DNA is unpar­al­leled in its abil­ity to dis­pos­i­tively prove inno­cence or guilt, bio­log­i­cal evi­dence that can be sub­jected to DNA test­ing is only avail­able and affords proof in a minor­ity of vio­lent crimes. Some crime lab direc­tors esti­mate that a mere 10% of the cases lend them­selves to DNA test­ing; con­se­quently, DNA test­ing can­not help us iden­tify the truth in the remain­ing 90 per­cent of cases, many of which involve some form of foren­sic evi­dence. There­fore, the need to be as sure as pos­si­ble about the valid­ity and reli­a­bil­ity of non-DNA foren­sic evi­dence is essen­tial for pub­lic safety and crit­i­cal to the integrity of crim­i­nal justice.

How­ever, the NAS report alarm­ingly observes that many of the com­monly used non-DNA foren­sic assays have not been sci­en­tif­i­cally val­i­dated, and there is no for­mal appa­ra­tus in place to do so for new and emerg­ing foren­sic tech­nolo­gies. Many foren­sic tech­niques — such as hair microscopy, bite mark com­par­isons, latent fin­ger­print com­par­isons, firearm/tool mark analy­sis and shoe and tire print com­par­isons — have never been suf­fi­ciently val­i­dated to per­mit an exam­iner to assert that a par­tic­u­lar defen­dant is the “source” of the trace or impres­sion evi­dence recov­ered from the crime scene. More­over, there has been almost no research to estab­lish the lim­its and mea­sures of per­for­mance and to address the sources of vari­abil­ity and poten­tial for inad­ver­tent bias, despite the fact that these types of stud­ies are rou­tine in other applied sci­ences such as med­i­cine and engi­neer­ing. Finally, even for foren­sic dis­ci­plines that have been prop­erly val­i­dated, impre­cise or exag­ger­ated expert report writ­ing and tes­ti­mony can lead to the admis­sion of erro­neous or mis­lead­ing testimony.

In con­trast, DNA typ­ing had its start in the nation’s pre­mier aca­d­e­mic research cen­ters, and sci­en­tists val­i­dated its ana­lyt­i­cal meth­ods before it was ever applied to the inves­ti­ga­tion of crime. When it was in its rel­a­tive infancy, the NAS embarked on not one but two thor­ough reviews of empir­i­cal data to estab­lish stan­dards for the inter­pre­ta­tion of case­work results and set lim­its on what an ana­lyst could reli­ably and sci­en­tif­i­cally say about the pro­ba­tive value of the DNA results. From research lab to clin­i­cal lab and from clin­i­cal lab to crime lab, foren­sic DNA test­ing devel­oped under the same scrutiny given to med­ical devices. So when it entered the court­room, there was already a tremen­dous body of basic and applied research reported in peer reviewed lit­er­a­ture in highly respected sci­en­tific jour­nals, amassed over a num­ber of years, to sup­port and val­i­date it.

In con­trast to DNA, most of the assays and tech­niques used in law enforce­ment — for exam­ple, tool mark and bite mark com­par­isons — 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. Sim­ply as a mat­ter of process, they often came on line in case­work and in courts with­out fol­low­ing the fun­da­men­tal prin­ci­ples of the sci­en­tific method described in Chap­ter 4 of the NAS report. Their asser­tions are accepted and repeated as fact, leav­ing juries with the false impres­sion that the evi­dence is more sci­en­tific than it is.

In med­i­cine, The National Insti­tutes of Health (NIH) and National Sci­ence Foun­da­tion (NSF) serve the vital func­tion of devel­op­ing research agen­das and fund­ing a body of basic and applied peer reviewed research stud­ies. Once that research has been com­pleted and exten­sively reviewed, another con­flict free entity — the Food and Drug Admin­is­tra­tion (FDA) — evaluates the newly devel­oped prod­uct to test its reli­a­bil­ity and to set stan­dards and para­me­ters for its use with patients before it is brought on line. Then, when the approved device gets to the clin­i­cal lab­o­ra­tory, the Clin­i­cal Lab­o­ra­tory Improve­ment Act man­dates qual­ity assur­ance prac­tices to pro­tect the integrity of the results in each laboratory.

How­ever, many foren­sic dis­ci­plines are not but­tressed by a vast body of basic and applied research; nor are their data pre­sented in the pre­mier peer review pub­li­ca­tions. For many of the pat­tern, trace and impres­sion evi­dence foren­sic dis­ci­plines, there was no fund­ing for basic aca­d­e­mic research or even a research agenda cre­ated by an entity free of the appear­ance of con­flict of inter­est to test for valid­ity and reliability.

For the vast major­ity of foren­sic assays and tech­niques, there never was a conflict-free com­pet­i­tive grant pro­gram fund­ing basic and applied research, nor an inde­pen­dent assess­ment of valid­ity or reli­a­bil­ity, nor enforce­able stan­dards in place to insure the integrity of the result in a lab­o­ra­tory set­ting. No entity com­pa­ra­ble to the FDA 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. Yet as I speak, and despite the find­ings of the NAS report, these assays and tech­nolo­gies are being used in inves­ti­ga­tions, pros­e­cu­tions and con­vic­tions daily in this coun­try despite their poten­tial to mis­lead police, pros­e­cu­tors, judges and juries away from the real per­pe­tra­tors of crime.
Inad­e­quate sci­ence leaves evi­dence open to attack and may mean that police, pros­e­cu­tors, judges and juries across the coun­try are at risk of being mis­lead away from the real per­pe­tra­tors of crime. It erro­neously steers the course of inves­ti­ga­tions, thus need­lessly pur­su­ing false leads and wast­ing pre­cious resources and cre­at­ing the need to reopen and renew inves­ti­ga­tions and lit­i­gate post-conviction appeals. That leads to count­less man­power hours lost and sig­nif­i­cant, need­less resource costs to law enforcement.

Con­ven­tional wis­dom once stated that a sound defense and cross-examination would enable courts to prop­erly assess the strength of foren­sic evi­dence. How­ever, the NAS report unequiv­o­cally states, and the post-conviction DNA exon­er­a­tion cases clearly demon­strate, that at least in crim­i­nal cases, the courts have not func­tioned well as gate­keep­ers of ques­tion­able sci­en­tific evi­dence, and given the lack of sci­en­tific knowl­edge among judges and legal prac­ti­tion­ers, “judi­cial review, by itself, will not cure the infir­mi­ties of the foren­sic sci­ence com­mu­nity.” n1 More­over, we can­not expect the courts to sort through or over­come the patch­work of stan­dards, or to assess for them­selves the reli­a­bil­ity of a device or tech­nique, no mat­ter how widely used. Because of the frag­men­ta­tion of the crim­i­nal jus­tice sys­tem and in par­tic­u­lar the frag­men­ta­tion of the foren­sic sci­ence com­mu­nity, given the lack of a sound sci­en­tific foun­da­tion for many foren­sic tech­nolo­gies and assays, 50 states may be oper­at­ing under 50 def­i­n­i­tions of “science” — and there­fore 50 stan­dards of justice.

It is 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. 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. Indeed, for our jus­tice sys­tem to work prop­erly, stan­dards must be devel­oped and qual­ity must be assured before the evi­dence is pre­sented to the courts.

In Melendez-Diaz v. Mass­a­chu­setts, the Supreme Court recently ruled that lab­o­ra­tory reports are con­sid­ered tes­ti­mony, and as a result defen­dants have the right to cross-examine the crime lab per­son­nel who cre­ated them. Writ­ing for the major­ity, Jus­tice Scalia cited the NAS report’s analy­sis of the short­com­ings of foren­sic sci­ences in explain­ing the court’s ruling:

“Con­fronta­tion is one means of assur­ing accu­rate foren­sic analysis…[it] is designed to weed out not only the fraud­u­lent ana­lyst, but the incom­pe­tent one as well. Seri­ous defi­cien­cies have been found in the foren­sic evi­dence used in crim­i­nal tri­als. One com­men­ta­tor asserts that ‘[t]he legal com­mu­nity now con­cedes, with vary­ing degrees of urgency, that our sys­tem pro­duces erro­neous con­vic­tions based on dis­cred­ited foren­sics.’” n2

The legit­i­mate con­cerns about the bur­dens this deci­sion may pose would be sig­nif­i­cantly alle­vi­ated by an improved foren­sic sci­ence sys­tem. The prosecutor’s reliance on foren­sic assays that had been prop­erly val­i­dated and of demon­strated reli­a­bil­ity, car­ried out by crime lab per­son­nel com­ply­ing with enforce­able stan­dards would give both defense attor­neys and pros­e­cu­tors clar­ity about the par­tic­u­lar strength of evi­dence being intro­duced in the court­room. The par­tic­i­pa­tion of sci­en­tists who have no stake in the out­come of a court pro­ceed­ing will not only raise the rigor of the sci­ence but will also boost pub­lic con­fi­dence, which, as the NAS report notes, is impor­tant because “if juries lose con­fi­dence in the reli­a­bil­ity of foren­sic tes­ti­mony, valid evi­dence might be dis­counted, and some inno­cent per­sons might be con­victed or guilty indi­vid­u­als acquit­ted.” n3

The NAS notes that, despite these ongo­ing prob­lems, nei­ther the FBI nor the National Insti­tute of Jus­tice (NIJ) have, over the years, “rec­og­nized, let alone artic­u­lated, a need for change or a vision for achiev­ing it.” n4 Although the FBI and NIJ were aware of the lack of evidence-based val­i­da­tion for sev­eral foren­sic dis­ci­plines going back many years, through both Demo­c­ra­tic and Repub­li­can admin­is­tra­tions, no cor­rec­tive action was taken. For over 40 years, the FBI used com­pos­ite bul­let lead analy­sis in its inves­ti­ga­tions; it was only after the NAS released a report that found bul­let lead analy­sis to be “unre­li­able and poten­tially mis­lead­ing” n5 that it was retired in the sum­mer of 2005. Much of the research spon­sored by the NIJ over the years in non-DNA foren­sic dis­ci­plines assumed validity.

The NAS report rec­og­nized the crit­i­cal mis­sion of DOJ to enforce the law, defend the inter­ests of the United States accord­ing to the law, and the essen­tial role law enforce­ment insti­tu­tions play in that mis­sion. How­ever, the NAS con­cluded: “The entity that is estab­lished to gov­ern the foren­sic sci­ence com­mu­nity can­not be prin­ci­pally beholden to law enforce­ment. The poten­tial for con­flicts of inter­est between the needs of law enforce­ment and the broader needs of foren­sic sci­ence are too great.” n6 Unfor­tu­nately, the Sci­en­tific Work­ing Group (SWG) sys­tem that the DOJ relies on to set foren­sic stan­dards illus­trates that, despite their good faith, that poten­tial con­flict of inter­est exists. Largely com­posed of pro­fes­sion­als who are active mem­bers of the law enforce­ment com­mu­nity or foren­sic lab­o­ra­to­ries, there is not only an over­lap between SWG mem­ber­ship and the groups to whom SWG guide­lines are directed, but SWG mem­bers rep­re­sent the very orga­ni­za­tions for which the SWG is sup­posed to set stan­dards and prac­tices. Judge Harry Edwards, Senior Cir­cuit Judge and Chief Judge Emer­i­tus for the U.S. Court of Appeals for the D.C. Cir­cuit, and the Co– Chair of the NAS report, under­scored this point in his tes­ti­mony before this Com­mit­tee on March 18, 2009, say­ing that SWGs are, “as a gen­eral mat­ter, of ques­tion­able value.” n7

In clin­i­cal sci­ence, the peo­ple who stand to ben­e­fit from a new prod­uct enter­ing the mar­ket­place are not given the author­ity to make grant award deci­sions at NIH or the author­ity to pass judg­ment on the product’s effi­cacy at the FDA. If the phar­ma­ceu­ti­cal com­pa­nies took the reigns of the research or prod­uct cer­ti­fi­ca­tion process, there is no doubt that the drugs or devices will become approved and put online for dis­tri­b­u­tion more quickly. How­ever, healthy inquiry would give rise to ques­tions as to how com­pre­hen­sively the prod­ucts were reviewed given the ben­e­fit the review­ers would receive from their pas­sage. For the same rea­sons we do not allow auto­mo­bile mak­ers to set vehi­cle per­for­mance stan­dards. There is no jus­ti­fi­ca­tion for the nation accept­ing a lesser stan­dard of over­sight and con­flict free inde­pen­dence for crim­i­nal jus­tice than for the public’s health.
It is crit­i­cal that we all under­stand the real world con­se­quences of the foren­sic prob­lems. These were not inci­dents reflec­tive of one bad actor, or one way­ward juris­dic­tion; our review of the nation’s DNA exon­er­a­tions showed that 72 foren­sic ana­lysts from 52 dif­fer­ent labs, across 25 states had pro­vided tes­ti­mony that was inap­pro­pri­ate and/or sig­nif­i­cantly exag­ger­ated the pro­ba­tive value of the evi­dence before the fact finder in either reports or live court­room tes­ti­mony. n8 Accord­ing to the NAS 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. n9

The NAS cited Bran­don Mayfield’s case as one that should “surely sig­nal cau­tion against sim­ple, and unver­i­fied, assump­tions about the reli­a­bil­ity of fin­ger­print evi­dence.” n10 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 and swore in affi­davits that they were “100% cer­tain” that the 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% cer­tain if the image was poor. n11 Sev­eral major inves­ti­ga­tions fol­lowed, includ­ing one con­ducted by the Inspec­tor Gen­eral of the Depart­ment of Jus­tice that found that mis­takes were made, in part, because the FBI which does not require a pre-determined min­i­mum num­ber of char­ac­ter­is­tics to draw a con­clu­sion. n12

Roy Brown was con­victed of a 1991 mur­der and spent 15 years in prison for a crime he did not com­mit. His con­vic­tion was secured in large part by unval­i­dated and improper foren­sic bitemark analy­sis, which has been shown to have “a dis­turbingly high false-positive error rate.” n13 Despite the fact that a lead­ing foren­sic odon­tol­o­gist exam­ined the bitemarks before trial and excluded Roy, the pros­e­cu­tion moved for­ward with tes­ti­mony from a local den­tist who stated that the seven bitemarks found on the victim’s body were “entirely con­sis­tent” with Roy. Although that mark had two more upper teeth than he had, Roy was sen­tenced to 25 years to life.

While in prison, Roy suf­fered from liver dis­ease and was in need of a liver trans­plant for which he was not eli­gi­ble as an inmate. Dying in prison, he was deter­mined to con­tinue his fight for free­dom. After obtain­ing legal doc­u­ments through the Free­dom of Infor­ma­tion Act, Roy found mate­r­ial not dis­closed to the defense at the time of trial that enabled him to solve his own case. He wrote to Barry Bench, the man who was impli­cated in those doc­u­ments, and told him that DNA would iden­tify him as the mur­derer once he secured post-conviction DNA test­ing. Bench com­mit­ted sui­cide five days after the let­ter was mailed. Roy’s free­dom did not come until 2007, when DNA test­ing con­clu­sively proved that Barry Bench com­mit­ted the crime. A few days after his release, Roy received a liver trans­plant and lives today as a wit­ness to how unval­i­dated and unre­li­able foren­sic evi­dence can not only take a person’s free­dom, but nearly his life.

Unlike May­field and Brown, reform will come too late for Cameron Todd Will­ing­ham. Will­ing­ham was con­victed of inten­tion­ally set­ting fire to his house in which he and his three young daugh­ters resided. The three girls per­ished in the fire. Since there was no real motive attrib­uted to Will­ing­ham, the most sig­nif­i­cant issue in the case was whether the post-fire obser­va­tions of the debris sup­ported a find­ing of arson as opposed to acci­dent. Will­ing­ham was con­victed in 1993 of cap­i­tal mur­der and sen­tenced to death on the strength of expert tes­ti­mony pro­vided by the state’s arson inves­ti­ga­tor. He was exe­cuted by the State of Texas in 2004. The arson investigator’s con­clu­sions were based on “gen­er­ally accepted,” albeit an unsci­en­tific, under­stand­ing of accel­er­ants. In the last five years, those con­clu­sions were proven to be with­out sci­en­tific basis by the top arson inves­ti­ga­tors in the nation, all of whom con­cluded that the fire was acci­den­tal in ori­gin. Based on evi­dence unearthed and pub­lished last week n14, the state of Texas most likely exe­cuted an inno­cent man. With your sup­port, we will min­i­mize the pos­si­bil­ity that tragedies like Cameron Todd Will­ing­ham, Bran­don May­field and Roy Brown and those endured by the nation’s other 241 — and count­ing — exonerees and their fam­i­lies will be need­lessly repeated, and we will sig­nif­i­cantly enhance the qual­ity of jus­tice in the United States.

The NAS report pro­vided a crit­i­cal wakeup call regard­ing the seri­ous short­com­ings that exist in the analy­sis of foren­sic evi­dence and laid out a roadmap to address­ing the major improve­ments in the foren­sic sys­tem nec­es­sary to ensure the most accu­rate evi­dence — and there­fore jus­tice — pos­si­ble. How­ever, while the report’s find­ings were a source of alarm about the crim­i­nal jus­tice system’s foren­sic prac­tices, we must rec­og­nize that it pro­vides the sys­tem with a tremen­dous oppor­tu­nity. Namely, its rec­om­men­da­tions will allow us to increase the accu­racy of crim­i­nal inves­ti­ga­tions; strengthen crim­i­nal pros­e­cu­tions; bring jus­tice to vic­tims; con­serve resources so law enforce­ment can ded­i­cate them toward find­ing true per­pe­tra­tors; and pro­tect the inno­cent from wrong­ful conviction.

There­fore, the Inno­cence Project sup­ports the NAS report’s pri­mary rec­om­men­da­tion that a National Insti­tute of Foren­sic Sci­ence (NIFS) be estab­lished. We believe that there is an approach to the cre­ation of a NIFS that is cost effec­tive, and that does not cre­ate need­less bureau­cracy, by mak­ing use of exist­ing fed­eral and state resources. 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.

For that rea­son, the Inno­cence Project sug­gests that NIFS be estab­lished within the Depart­ment of Com­merce. The Com­merce Depart­ment has exist­ing exper­tise in research and stan­dard set­ting through the National Insti­tute of Stan­dards and Tech­nol­ogy (NIST). Hous­ing NIFS at the Depart­ment of Com­merce will allow sci­en­tists to con­duct the sci­ence research and stan­dard set­ting in the best tra­di­tions of the sci­en­tific method with the inde­pen­dence that will ensure the integrity of the foren­sic evi­dence used to guide the crim­i­nal jus­tice system.

We agree with the NAS report that “[g]overnance 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.” n15 There­fore, the Inno­cence Project would urge Con­gress to con­sider estab­lish­ing NIFS out­side of NIST, so that it has the suf­fi­cient stature within the Depart­ment to con­duct its crit­i­cal work with­out interruption.

The Inno­cence Project strongly believes that this body can­not oper­ate in a vac­uum. A sys­tem must be estab­lished that would solicit, encour­age, and incor­po­rate the sug­ges­tions and rec­om­men­da­tions of the entire uni­verse of affected stake­hold­ers. NIFS will need the exper­tise of law enforce­ment to set the pri­or­i­ties on which tools are most impor­tant and there­fore should be tack­led first, for exam­ple. It will need to work with con­stituen­cies from through­out the crim­i­nal jus­tice sys­tem to ensure that its stan­dards are phased-in in a way that is prac­ti­cal and achiev­able and to min­i­mize dis­rup­tion to the system.

NIFS should focus on three crit­i­cal pri­or­i­ties: (1) basic and applied research to assess valid­ity and reli­a­bil­ity of exist­ing foren­sic assays, devices and tech­nolo­gies and to dis­cover new foren­sic tech­nolo­gies, (2) estab­lish national stan­dards for appli­ca­tion of assays, devices and tech­nolo­gies to insure qual­ity and integrity of results, and (3) imple­men­ta­tion of stan­dards and broader qual­ity assur­ance through accred­i­ta­tion and cer­ti­fi­ca­tion pro­grams. It 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. We believe that NIFS could work with the NSF to cre­ate new com­pet­i­tive grants, or real­lo­cate exist­ing grant monies, toward foren­sic sci­ence research that could be con­ducted at col­leges and uni­ver­si­ties through­out the country.

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 court­room tes­ti­mony must oper­ate. The Inno­cence Project would then sup­port the pro­mul­ga­tion of stan­dards by rule­mak­ing to ensure that the pub­lic is given ade­quate notice and oppor­tu­nity to com­ments on pro­posed standards.

We also believe that the Depart­ment of Jus­tice, work­ing with NIFS’ stan­dards, be respon­si­ble for ensur­ing com­pli­ance and enforce­ment. A cen­tral part of that endeavor must include manda­tory 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. So that the DOJ does not need­lessly under­take a sig­nif­i­cant expan­sion of its respon­si­bil­i­ties, exist­ing inde­pen­dent accred­it­ing and cer­ti­fy­ing bod­ies could han­dle the accred­i­ta­tion and cer­ti­fi­ca­tion processes, with the approval of DOJ.

Vol­un­tary accred­i­ta­tion of lab­o­ra­to­ries and vol­un­tary cer­ti­fi­ca­tion of ana­lysts have, of course, been part of the foren­sic sys­tem for years. How­ever, many of the accred­ited labs and cer­ti­fied prac­ti­tion­ers have, nev­er­the­less, been report­ing results that the NAS con­cludes — and DNA exon­er­a­tions have con­firmed — have never been sci­en­tif­i­cally val­i­dated for their accu­racy or pre­ci­sion. Accred­i­ta­tion only pro­vides assur­ance that pro­to­cols for lab­o­ra­tory oper­a­tions, evi­dence han­dling, per­son­nel man­age­ment, review of lab reports, and mon­i­tor­ing of tes­ti­mony takes place; and cer­ti­fi­ca­tion only mon­i­tors edu­ca­tion, expe­ri­ence, train­ing, and com­ple­tion of a skills-based test. Nei­ther prac­tice is deter­mi­na­tive of the cor­rect­ness of the foren­sic product.

Because of both a lack of resources and the cur­rent frag­mented allo­ca­tion of fund­ing streams, most crime labs are focused on erad­i­cat­ing back­logs in addi­tion to new case­work. In addi­tion, cur­rent fund­ing is not ade­quate to allow nec­es­sary research to be con­ducted to improve the var­i­ous dis­ci­plines. This both delays jus­tice and hin­ders the abil­ity of a prac­ti­tioner to con­duct his or her work as well as pos­si­ble. There­fore, the Inno­cence Project would sup­port an assess­ment of the resource needs of the foren­sic sci­ence com­mu­nity — and those who employ foren­sic evi­dence — to allow us to fully grasp the mag­ni­tude of the prob­lem and work to make sure that suit­able funds are appro­pri­ated to address the work that needs to be done.

Addi­tion­ally, we believe that a pro­gram pro­mot­ing the research and devel­op­ment of both exist­ing and new foren­sic dis­ci­plines will cre­ate new indus­tries and jobs, and pro­mote public-private part­ner­ships, just as the devel­op­ment of DNA tech­nolo­gies and their appli­ca­tions has done.

Soci­ety as a whole ben­e­fits when the most reli­able and pro­ba­tive evi­dence is used to ascer­tain truth. Imple­men­ta­tion of the National Academy’s rec­om­men­da­tions will make crim­i­nal inves­ti­ga­tions and pros­e­cu­tions more sci­en­tific and thus more reli­able. Pub­lic safety will be enhanced, and, per­haps most impor­tantly, jus­tice will be more assured.

n1 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. 12.

n2 Melendez-Diaz v. Mass­a­chu­setts, 557 U.S. ___ (2009), p. 13.

n3 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. 37.

n4 Ibid., p. 16.

n5 Foren­sic Analy­sis: Weigh­ing Bul­let Lead Evi­dence. The National Acad­e­mies Press (2004), p. 5.

n6 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. 17.

n7 Hear­ing before the Sen­ate Judi­ciary Com­mit­tee on Strength­en­ing Foren­sic Sci­ence in the United States: A Path For­ward, 111th Cong., 1st Ses­sion, Tes­ti­mony of Judge Harry T. Edwards, pp. 4 and 5.

n8 Gar­rett, Bran­don L. and Neufeld, Peter J.,Invalid Foren­sic Sci­ence Tes­ti­mony and Wrong­ful Convictions(March 16, 2009). Vir­ginia Law Review, Vol. 95, No. 1, (2009), p. 9.

n9 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. 4 and 5

n10 Ibid., p. 105.

n11 Ibid., p. 105, foot­notes 75 and 76, which indi­cated that con­tex­tual bias and con­fir­ma­tion bias played an impor­tant role in the misidentification.

n12 Office of the Inspec­tor Gen­eral, Over­sight and Review Divi­sion, U.S. Depart­ment of Jus­tice. 2006. A Review of the FBI’s Han­dling of the Bran­don May­field Case, p.11.

n13 C. Michael Bow­ers, Problem-Based Analy­sis of Bitemark Misiden­ti­fi­ca­tions: The Role of DNA, 159S Foren­sic Sci­ence Inter­na­tional, S107 (2006).

n14 Gann, David, “Trial by Fire,” The New Yorker, Sep­tem­ber 7, 2009.

n15 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. 2 – 19.

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