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Summary INTRODUCTION On November 22, 2005, the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became law. Under the terms of the statute, Congress authorized âthe National Academy of Sciences to conduct a study on forensic science, as described in the Senate report.â The Senate Report to which the Conference Report refers states: While a great deal of analysis exists of the requirements in the discipline of DNA, there exists little to no analysis of the remaining needs of the community outside of the area of DNA. Therefore . . . the Committee directs the Attorney General to provide [funds] to the National Academy of Sciences to create an independent Forensic Science Committee. This Committee shall include members of the forensics community represent- ing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate. The Senate Report also sets forth the charge to the Forensic Science Committee, instructing it to: (1) assess the present and future resource needs of the forensic science community, to include State and local crime labs, medical examin- ers, and coroners; â P.L.No. 109â108, 119 Stat. 2290 (2005). â H.R. Rep. No. 109â272, at 121 (2005) (Conf. Rep.). â S. Rep. No. 109â88, at 46 (2005).
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES (2) make recommendations for maximizing the use of forensic tech- nologies and techniques to solve crimes, investigate deaths, and protect the public; (3) identify potential scientific advances that may assist law enforce- ment 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 con- sistency 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 secu- rity mission; (7) [examine] interoperability of Automated Fingerprint Information Systems [AFIS]; and (8) examine additional issues pertaining to forensic science as deter- mined by the Committee. In the fall of 2006, a committee was established by the National Acad- emy of Sciences to implement this congressional charge. As recommended in the Senate Report, the persons selected to serve included members of the forensic science community, members of the legal community, and a diverse group of scientists. Operating under the project title âIdentifying the Needs of the Forensic Science Community,â the committee met on eight occasions: January 25-26, April 23-24, June 5-6, September 20-21, and December 6-7, 2007, and March 24-25, June 23-24, and November 14-15, 2008. During these meetings, the committee heard expert testimony and deliberated over the information it heard and received. Between meetings, committee mem- bers reviewed numerous published materials, studies, and reports related to the forensic science disciplines, engaged in independent research on the subject, and worked on drafts of the final report. Experts who provided testimony included federal agency officials; aca- demics and research scholars; private consultants; federal, state, and local law enforcement officials; scientists; medical examiners; a coroner; crime laboratory officials from the public and private sectors; independent inves- tigators; defense attorneys; forensic science practitioners; and leadership of professional and standard setting organizations (see the Acknowledgments and Appendix B for a complete listing of presenters). â Ibid.
SUMMARY The issues covered during the committeeâs hearings and deliberations included: (a) the fundamentals of the scientific method as applied to forensic practiceâhypothesis generation and testing, falsifiability and rep- lication, and peer review of scientific publications; (b) the assessment of forensic methods and technologiesâthe col- lection and analysis of forensic data; accuracy and error rates of forensic analyses; sources of potential bias and human error in in- terpretation by forensic experts; and proficiency testing of forensic experts; (c) infrastructure and needs for basic research and technology assess- ment in forensic science; (d) current training and education in forensic science; (e) structure and operation of forensic science laboratories; the (f) structure and operation of the coroner and medical examiner the systems; (g) budget, future needs, and priorities of the forensic science com- munity and the coroner and medical examiner systems; (h) the accreditation, certification, and licensing of forensic science operations, medical death investigation systems, and scientists; (i) Scientific Working Groups (SWGs) and their practices; (j) forensic science practicesâ pattern/experience evidence o fingerprints (including the interoperability of AFIS) o firearms examination o toolmarks o bite marks o impressions (tires, footwear) o bloodstain pattern analysis o handwriting o hair analytical evidence o DNA o coatings (e.g., paint) o chemicals (including drugs) o materials (including fibers) o fluids o serology o fire and explosive analysis digital evidence; (k) t e effectiveness of coroner systems as compared with medical h examiner systems;
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES (l ) use of forensic evidence in criminal and civil litigationâ the o collection and flow of evidence from crime scenes to the courtrooms o the manner in which forensic practitioners testify in court o cases involving the misinterpretation of forensic evidence o the adversarial system in criminal and civil litigation o lawyersâ use and misuse of forensic evidence o judgesâ handling of forensic evidence; (m) orensic practice and projects at various federal agencies, including f NIST, the FBI, DHS, U.S. Secret Service, NIJ, DEA, and DOD; (n) forensic practice in state and local agencies; (o) nontraditional forensic service providers; and (p) the forensic science community in the United Kingdom. The testimonial and documentary evidence considered by the commit- tee was detailed, complex, and sometimes controversial. Given this reality, the committee could not possibly answer every question that it confronted, nor could it devise specific solutions for every problem that it identified. Rather, it reached a consensus on the most important issues now facing the forensic science community and medical examiner system and agreed on 13 specific recommendations to address these issues. Challenges Facing the Forensic Science Community For decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and conviction of criminals as well as to the exoneration of innocent people. Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great additional potential to help law enforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping to identify the perpetrators. Those advances, however, also have revealed that, in some cases, sub- stantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, im- precise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. Further advances in the forensic science disciplines will serve three im- portant purposes. First, further improvements will assist law enforcement officials in the course of their investigations to identify perpetrators with higher reliability. Second, further improvements in forensic science practices
SUMMARY should reduce the occurrence of wrongful convictions, which reduces the risk that true offenders continue to commit crimes while innocent persons inappropriately serve time. Third, any improvements in the forensic science disciplines will undoubtedly enhance the Nationâs ability to address the needs of homeland security. 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 profes- sional 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. It is therefore unsurprising that Congress instructed this committee to, among other things, âassess the present and future re- source needs of the forensic science community,â âmake recommendations for maximizing the use of forensic technologies and techniques,â âmake recommendations for programs that will increase the number of qualified forensic scientists and medical examiners,â and âdisseminate 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.â These are among the pressing issues facing the forensic science community. The best professionals in the forensic science disciplines invari- ably are hindered in their work because these and other problems persist. The length of the congressional charge and the complexity of the mate- rial under review made the committeeâs assignment challenging. In under- taking it, the committee first had to gain an understanding of the various disciplines within the forensic science community, as well as the communi- tyâs history, its strengths and weaknesses, and the roles of the people and agencies that constitute the community and make use of its services. In so doing, the committee was able to better comprehend some of the major problems facing the forensic science community and the medical examiner system. A brief review of some of these problems is illuminating. Disparities in the Forensic Science Community There are great disparities among existing forensic science operations in federal, state, and local law enforcement jurisdictions and agencies. This is true with respect to funding, access to analytical instrumentation, the avail- ability of skilled and well-trained personnel, certification, accreditation, and â In this report, the âforensic science community,â broadly speaking, is meant to include forensic pathology and medicolegal death investigation, which is sometimes referred to as âthe medical examiner systemâ or âthe medicolegal death investigation system.â
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES oversight. As a result, it is not easy to generalize about current practices within the forensic science community. It is clear, however, that any ap- proach to overhauling the existing system needs to address and help mini- mize the communityâs current fragmentation and inconsistent practices. Although the vast majority of criminal law enforcement is handled by state and local jurisdictions, these entities often are sorely lacking in the resources (money, staff, training, and equipment) necessary to promote and maintain strong forensic science laboratory systems. By comparison, federal programs are often much better funded and staffed. It is also noteworthy that the resources, the extent of services, and the amount of expertise that medical examiners and forensic pathologists can provide vary widely in dif- ferent jurisdictions. As a result, the depth, reliability, and overall quality of substantive information arising from the forensic examination of evidence available to the legal system vary substantially across the country. Lack of Mandatory Standardization, Certification, and Accreditation The fragmentation problem is compounded because operational prin- ciples and procedures for many forensic science disciplines are not stan- dardized or embraced, either between or within jurisdictions. There is no uniformity in the certification of forensic practitioners, or in the accredita- tion of crime laboratories. Indeed, most jurisdictions do not require forensic practitioners to be certified, and most forensic science disciplines have no mandatory certification programs. Moreover, accreditation of crime labo- ratories is not required in most jurisdictions. Often there are no standard protocols governing forensic practice in a given discipline. And, even when protocols are in place (e.g., SWG standards), they often are vague and not enforced in any meaningful way. In short, the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accredita- tion programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice. The Broad Range of Forensic Science Disciplines The term âforensic scienceâ encompasses a broad range of forensic dis- ciplines, each with its own set of technologies and practices. In other words, there is wide variability across forensic science disciplines with regard to â See, e.g., P.C. Giannelli. 2007. Wrongful convictions and forensic science: The need to regulate crime labs. 86 N.C. L. Rev. 163 (2007); B. Schmitt and J. Swickard. 2008. âDetroit Police Lab Shut Down After Probe Finds Errors.â Detroit Free Press. September 25.
SUMMARY techniques, methodologies, reliability, types and numbers of potential er- rors, research, general acceptability, and published material. Some of the forensic science disciplines are laboratory based (e.g., nuclear and mito- chondrial DNA analysis, toxicology and drug analysis); others are based on expert interpretation of observed patterns (e.g., fingerprints, writing samples, toolmarks, bite marks, and specimens such as hair). The âforensic science community,â in turn, consists of a host of practitioners, including scientists (some with advanced degrees) in the fields of chemistry, biochem- istry, biology, and medicine; laboratory technicians; crime scene investiga- tors; and law enforcement officers. There are very important differences, however, between forensic laboratory work and crime scene investigations. There are also sharp distinctions between forensic practitioners who have been trained in chemistry, biochemistry, biology, and medicine (and who bring these disciplines to bear in their work) and technicians who lend sup- port to forensic science enterprises. Many of these differences are discussed in the body of this report. The committee decided early in its work that it would not be feasible to develop a detailed evaluation of each discipline in terms of its scientific underpinning, level of development, and ability to provide evidence to ad- dress the major types of questions raised in criminal prosecutions and civil litigation. However, the committee solicited testimony on a broad range of forensic science disciplines and sought to identify issues relevant across definable classes of disciplines. As a result of listening to this testimony and reviewing related written materials, the committee found substantial evidence indicating that the level of scientific development and evaluation varies substantially among the forensic science disciplines. Problems Relating to the Interpretation of Forensic Evidence Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about âindividualizationâ (sometimes referred to as âmatchingâ a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. 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. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation. But there are important varia- tions among the disciplines relying on expert interpretation. For example, there are more established protocols and available research for fingerprint analysis than for the analysis of bite marks. There also are significant varia- tions within each discipline. For example, not all fingerprint evidence is
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES equally good, because the true value of the evidence is determined by the quality of the latent fingerprint image. These disparities between and within the forensic science disciplines highlight a major problem in the forensic sci- ence community: The simple reality is that the interpretation of forensic evi- dence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods. The Need for Research to Establish Limits and Measures of Performance In evaluating the accuracy of a forensic analysis, it is crucial to clarify the type of question the analysis is called on to address. Thus, although some techniques may be too imprecise to permit accurate identification of a specific individual, they may still provide useful and accurate information about questions of classification. For example, microscopic hair analysis may provide reliable evidence on some characteristics of the individual from which the specimen was taken, but it may not be able to reliably match the specimen with a specific individual. However, the definition of the appro- priate question is only a first step in the evaluation of the performance of a forensic technique. 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 lack- ing in most of the forensic disciplines that rely on subjective assessments of matching characteristics. These disciplines need to develop rigorous protocols to guide these subjective interpretations and pursue equally rigor- ous research and evaluation programs. The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential for bias and error in human observers. â Several articles, for example, have noted the lack of scientific validation of fingerprint iden- tification methods. See, e.g., J.J. Koehler. Fingerprint error rates and proficiency tests: What they are and why they matter. 59 Hastings L.J. 1077 (2008); L. Haber and R.N. Haber. 2008. Scientific validation of fingerprint evidence under Daubert. Law, Probability and Risk 7(2):87; J.L. Mnookin. 2008. The validity of latent fingerprint identification: Confessions of a fingerprinting moderate. Law, Probability and Risk 7(2):127. â The findings of forensic science experts are vulnerable to cognitive and contextual bias. See, e.g., I.E. Dror, D. Charlton, and A.E. PÃ©ron. 2006. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International 156:74, 77. (âOur study shows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.â); I.E. Dror and D. Charlton. 2006. Why experts make errors. Journal of Forensic Identification 56(4):600; Giannelli, supra note 6, pp. 220- 222. Unfortunately, at least to date, there is no good evidence to indicate that the forensic
SUMMARY The Admission of Forensic Science Evidence in Litigation Forensic science experts and evidence are used routinely in the service of the criminal justice system. DNA testing may be used to determine whether sperm found on a rape victim came from an accused party; a latent fingerprint found on a gun may be used to determine whether a defendant handled the weapon; drug analysis may be used to determine whether pills found in a personâs possession were illicit; and an autopsy may be used to determine the cause and manner of death of a murder victim. In order for qualified forensic science experts to testify competently about forensic evidence, they must first find the evidence in a usable state and properly preserve it. A latent fingerprint that is badly smudged when found cannot be usefully saved, analyzed, or explained. An inadequate drug sample may be insufficient to allow for proper analysis. And, DNA tests performed on a contaminated or otherwise compromised sample cannot be used reliably to identify or eliminate an individual as the perpetrator of a crime. These are important matters involving the proper processing of forensic evidence. The lawâs greatest dilemma in its heavy reliance on forensic evidence, however, concerns the question of whetherâand to what extentâthere is science in any given forensic science discipline. Two very important questions should underlie the lawâs admission of and reliance upon forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards. These questions are significant. Thus, it matters a great deal whether an expert is qualified to testify about forensic evidence and whether the evidence is sufficiently reliable to merit a fact finderâs reliance on the truth that it purports to support. Unfortunately, these important questions do not always produce satisfactory answers in judicial decisions pertaining to the admissibility of forensic science evidence proffered in criminal trials. In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Su- preme Court ruled that, under Rule 702 of the Federal Rules of Evidence (which covers both civil trials and criminal prosecutions in the federal courts), a âtrial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.â10 The Court indicated science community has made a sufficient effort to address the bias issue; thus, it is impossible for the committee to fully assess the magnitude of the problem. â 509 U.S. 579 (1993). 10â Ibid., p. 589.
10 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES that the subject of an expertâs testimony should be scientific knowledge, so that âevidentiary reliability will be based upon scientific validity.â11 The Court also emphasized that, in considering the admissibility of evidence, a trial judge should focus âsolelyâ on the expertâs âprinciples and methodol- ogy,â and ânot on the conclusions that they generate.â12 In sum, Daubertâs requirement that an expertâs testimony pertain to âscientific knowledgeâ established a standard of âevidentiary reliability.â13 In explaining this evidentiary standard, the Daubert Court pointed to several factors that might be considered by a trial judge: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular scientific technique; (4) the existence and maintenance of standards controlling the techniqueâs opera- tion; and (5) a scientific techniqueâs degree of acceptance within a relevant scientific community.14 In the end, however, the Court emphasized that the inquiry under Rule 702 is âa flexible one.â15 The Court expressed confi- dence in the adversarial system, noting that â[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.â16 The Supreme Court has made it clear that trial judges have great discretion in deciding on the admissibility of evidence under Rule 702, and that appeals from Daubert rulings are subject to a very narrow abuse-of-discretion standard of review.17 Most importantly, in Kumho Tire Co., Ltd. v. Carmichael, the Court stated that âwhether Daubertâs specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.â18 11â Ibid., pp. 590 and 591 n.9 (emphasis omitted). 12â Ibid., p. 595. In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), the Court added: â[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.â 13â Daubert, 509 U.S. at 589, 590 n.9, 595. 14â Ibid., pp. 593-94. 15â Ibid., p. 594. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court confirmed that the Daubert factors do not constitute a definitive checklist or test. Kumho Tire importantly held that Rule 702 applies to both scientific and nonscientific expert testimony; the Court also indicated that the Daubert factors might be applicable in a trial judgeâs as- sessment of the reliability of nonscientific expert testimony, depending upon âthe particular circumstances of the particular case at issue.â Ibid., at 150. 16â Daubert, 509 U.S. at 596. 17â See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-143 (1997). 18â Kumho Tire, 526 U.S. at 153.
SUMMARY 11 Daubert and its progeny have engendered confusion and controversy. In particular, judicial dispositions of Daubert-type questions in criminal cases have been criticized by some lawyers and scholars who thought that the Supreme Courtâs decision would be applied more rigorously.19 If one focuses solely on reported federal appellate decisions, the picture is not appealing to those who have preferred a more rigorous application of Daubert. Federal appellate courts have not with any consistency or clarity imposed standards ensuring the application of scientifically valid reasoning and reliable methodology in criminal cases involving Daubert questions. This is not really surprising, however. The Supreme Court itself described the Daubert standard as âflexible.â This means that, beyond questions of relevance, Daubert offers appellate courts no clear substantive standard by which to review decisions by trial courts. As a result, trial judges exercise great discretion in deciding whether to admit or exclude expert testimony, and their judgments are subject only to a highly deferential âabuse of dis- cretionâ standard of review. Although it is difficult to get a clear picture of how trial courts handle Daubert challenges, because many evidentiary rulings are issued without a published opinion and without an appeal, the vast majority of the reported opinions in criminal cases indicate that trial judges rarely exclude or restrict expert testimony offered by prosecutors; most reported opinions also indicate that appellate courts routinely deny appeals contesting trial court decisions admitting forensic evidence against criminal defendants.20 But the reported opinions do not offer in any way a complete sample of federal trial court dispositions of Daubert-type ques- tions in criminal cases. The situation appears to be very different in civil cases. Plaintiffs and defendants, equally, are more likely to have access to expert witnesses in civil cases, while prosecutors usually have an advantage over most defen- dants in offering expert testimony in criminal cases. And, ironically, the appellate courts appear to be more willing to second-guess trial court judg- ments on the admissibility of purported scientific evidence in civil cases than in criminal cases.21 19â See, e.g., P.J. Neufeld. 2005. The (near) irrelevance of Daubert to criminal justice: And some suggestions for reform. American Journal of Public Health 95(Supp.1):S107. 20â Ibid., p. S109. 21â See, e.g., McClain v. Metabolife Intâl, Inc., 401 F.3d 1233 (11th Cir. 2005); Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083 (10th Cir. 2000); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000); Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000); 1 D.L. Faigman, M.J. Saks, J. Sanders, and E.K. Cheng. 2007-2008. Modern Scientific Evidence: The Law and Science of Expert Testimony. Eagan, MN: Thomson/West, Â§ 1.35, p. 105 (discussing studies suggesting that courts âemploy Daubert more lackadaisically in criminal trialsâespecially in regard to prosecution evidenceâthan in civil casesâespecially in regard to plaintiff evidenceâ).
12 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES Prophetically, the Daubert decision observed that âthere are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revi- sion. Law, on the other hand, must resolve disputes finally and quickly.â22 But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the forensic science community. â[T]here is no evident reason why [ârigorous, systematicâ] research would be infeasible.â23 However, some courts appear to be loath to insist on such research as a condition of admitting forensic science evidence in criminal cases, perhaps because to do so would likely âdemand more by way of validation than the disciplines can presently offer.â24 The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding âscientific truth.â The judicial system is encumbered by, among other things, judges and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner, trial judges (sitting alone) who must decide evidentiary issues without the benefit of judicial col- leagues and often with little time for extensive research and reflection, and the highly deferential nature of the appellate review afforded trial courtsâ Daubert rulings. Given these realities, there is a tremendous need for the forensic science community to improve. Judicial review, by itself, will not cure the infirmities of the forensic science community.25 The development 22â Daubert, 509 U.S. at 596-97. 23â J. Griffin and D.J. LaMagna. 2002. Daubert challenges to forensic evidence: Ballistics next on the firing line. The Champion, September-October:20, 21 (quoting P. Giannelli and E. Imwinkelried. 2000. Scientific evidence: The fallout from Supreme Courtâs decision in Kumho Tire. Criminal Justice Magazine 14(4):12, 40). 24â Ibid. See, e.g., United States v. Crisp, 324 F.3d 261, 270 (4th Cir. 2003) (noting âthat while further research into fingerprint analysis would be welcome, to postpone present in-court utilization of this bedrock forensic identifier pending such research would be to make the best the enemy of the good.â (internal quotation marks omitted)). 25â See J.L. Mnookin. Expert evidence, partisanship, and epistemic competence. 73 Brook. L. Rev. 1009, 1033 (2008) (â[S]o long as we have our adversarial system in much its pres- ent form, we are inevitably going to be stuck with approaches to expert evidence that are imperfect, conceptually unsatisfying, and awkward. It may well be that the real lesson is this: those who believe that we might ever fully resolveârather than imperfectly manageâthe
SUMMARY 13 of scientific research, training, technology, and databases associated with DNA analysis have resulted from substantial and steady federal support for both academic research and programs employing techniques for DNA analysis. Similar support must be given to all credible forensic science dis- ciplines if they are to achieve the degrees of reliability needed to serve the goals of justice. With more and better educational programs, accredited laboratories, certified forensic practitioners, sound operational principles and procedures, and serious research to establish the limits and measures of performance in each discipline, forensic science experts will be better able to analyze evidence and coherently report their findings in the courts. The current situation, however, is seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community. Political Realities Most forensic science methods, programs, and evidence are within the regulatory province of state and local law enforcement entities or are covered by statutes and rules governing state judicial proceedings. Thus, in assessing the strengths, weaknesses, and future needs of forensic disci- plines, and in making recommendations for improving the use of forensic technologies and techniques, the committee remained mindful of the fact that Congress cannot directly fix all of the deficiencies in the forensic sci- ence community. Under our federal system of government, Congress does not have free reign to amend state criminal codes, rules of evidence, and statutes governing civil actions; nor may it easily and directly regulate local law enforcement practices, state and local medical examiner units, or state policies covering the accreditation of crime laboratories and the certifica- tion of forensic practitioners. Congressâ authority to act is significant, however. Forensic science pro- grams in federal government entitiesâwhether within DOJ, DHS, DOD, or the Department of Commerce (DOC)âare funded by congressional appropriations. If these programs are required to operate pursuant to the highest standards, they will provide an example for the states. More im- portantly, Congress can promote âbest practicesâ and strong educational, certification, accreditation, ethics, and oversight programs in the states by offering funds that are contingent on meeting appropriate standards of practice. There is every reason to believe that offers of federal funds with âstrings attachedâ can effect significant change in the forensic science com- deep structural tensions surrounding both partisanship and epistemic competence that per- meate the use of scientific evidence within our legal system are almost certainly destined for disappointment.â).
14 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES munity, because so many state and local programs currently are suffering for want of adequate resources. In the end, however, the committee recog- nized that state and local authorities must be willing to enforce change if it is to happen. In light of the foregoing issues, the committee exercised caution before drawing conclusions and avoided being too prescriptive in its recommen- dations. It also recognized that, given the complexity of the issues and the political realities that may pose obstacles to change, some recommenda- tions will have to be implemented creatively and over time in order to be effective. FINDINGS AND RECOMMENDATIONS The Fragmented System: Symptoms and Cures The forensic science disciplines currently are an assortment of methods and practices used in both the public and private arenas. Forensic science facilities exhibit wide variability in capacity, oversight, staffing, certifica- tion, and accreditation across federal and state jurisdictions. Too often they have inadequate educational programs, and they typically lack mandatory and enforceable standards, founded on rigorous research and testing, cer- tification requirements, and accreditation programs. Additionally, forensic science and forensic pathology research, education, and training lack strong ties to our research universities and national science assets. In addition to the problems emanating from the fragmentation of the forensic science community, the most recently published Census of Crime Laboratories conducted by BJS describes unacceptable case backlogs in state and local crime laboratories and estimates the level of additional resources needed to handle these backlogs and prevent their recurrence. Unfortunately, the backlogs, even in DNA case processing, have grown dramatically in recent years and are now staggering in some jurisdictions. The most recently published BJS Special Report of Medical Examiners and Coronersâ Offices also depicts a system with disparate and often inadequate educational and training requirements, resources, and capacitiesâin short, a system in need of significant improvement. Existing data suggest that forensic laboratories are underresourced and understaffed, which contributes to case backlogs and likely makes it difficult for laboratories to do as much as they could to (1) inform investi- gations, (2) provide strong evidence for prosecutions, and (3) avoid errors that could lead to imperfect justice. Being underresourced also means that the tools of forensic scienceâand the knowledge base that underpins the analysis and interpretation of evidenceâare not as strong as they could be, thus hindering the ability of the forensic science disciplines to excel at
SUMMARY 15 informing investigations, providing strong evidence, and avoiding errors in important ways. NIJ is the only federal agency that provides direct support to crime laboratories to alleviate the backlog, and those funds are minimal. The forensic science system is underresourced also in the sense that it has only thin ties to an academic research base that could support the forensic science disciplines and fill knowledge gaps. There are many hard-working and conscientious people in the forensic science community, but this under- resourcing inherently limits their ability to do their best work. Additional resources surely will be necessary to create high-quality, self-correcting systems. However, increasing the staff within existing crime laboratories and medical examinersâ offices is only part of the solution. What also is needed is an upgrading of systems and organizational structures, better training, the widespread adoption of uniform and enforceable best practices, and mandatory certification and accreditation programs. The forensic science community and the medical examiner/coroner system must be upgraded if forensic practitioners are to be expected to serve the goals of justice. Of the various facets of underresourcing, the committee is most con- cerned about the knowledge base. Adding more dollars and people to the enterprise might reduce case backlogs, but it will not address fundamental limitations in the capabilities of forensic science disciplines to discern valid information from crime scene evidence. For the most part, it is impossible to discern the magnitude of those limitations, and reasonable people will differ on their significance. Forensic science research is not well supported, and there is no uni- fied strategy for developing a forensic science research plan across federal agencies. Relative to other areas of science, the forensic disciplines have extremely limited opportunities for research funding. Although the FBI and NIJ have supported some research in forensic science, the level of support has been well short of what is necessary for the forensic science community to establish strong links with a broad base of research universities. Moreover, funding for academic research is limited and requires law enforcement col- laboration, which can inhibit the pursuit of more fundamental scientific questions essential to establishing the foundation of forensic science. The broader research community generally is not engaged in conducting re- search relevant to advancing the forensic science disciplines. The forensic science enterprise also is hindered by its extreme disaggregationâmarked by multiple types of practitioners with different levels of education and training and different professional cultures and standards for performance and a reliance on apprentice-type training and a guild-like structure of disciplines, which work against the goal of a single forensic science profession. Many forensic scientists are given scant opportunity for professional activities, such as attending conferences or
16 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES publishing their research, which could help strengthen the professional community and offset some of the disaggregation. The fragmented nature of the enterprise raises the worrisome prospect that the quality of evidence presented in court, and its interpretation, can vary unpredictably according to jurisdiction. Numerous professional associations are organized around the forensic science disciplines, and many of them are involved in training and educa- tion (see Chapter 8) and are developing standards and accreditation and certification programs (see Chapter 7). The efforts of these groups are laudable. However, except for the largest organizations, it is not clear how these associations interact or the extent to which they share requirements, standards, or policies. Thus, there is a need for more consistent and har- monized requirements. In the course of its deliberations and review of the forensic science en- terprise, it became obvious to the committee that, although congressional action will not remedy all of the deficiencies in forensic science methods and practices, truly meaningful advances will not come without significant concomitant leadership from the federal government. The forensic science enterprise lacks the necessary governance structure to pull itself up from its current weaknesses. Of the many professional societies that serve the enterprise, none is dominant, and none has clearly articulated the need for change or presented a vision for accomplishing it. And clearly no munici- pal or state forensic office has the mandate to lead the entire enterprise. The major federal resourcesâNIJ and the FBI Laboratoryâhave provided modest leadership, for which they should be commended: NIJ has contrib- uted a helpful research program and the FBI Laboratory has spearheaded the SWGs. But again, neither entity has recognized, let alone articulated, a need for change or a vision for achieving it. Neither has the full confi- dence 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. 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 enoughâand independent enoughâto identify the limitations of forensic science methodologies, and must be well connected with the Nationâs 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 discour- age bad practices. It must have influence with educators in order to effect improvements to forensic science education. It must be able to identify standards and enforce them. A governance entity must be geared toward
SUMMARY 17 (and be credible within) the law enforcement community, but it must have strengths that extend beyond that area. Oversight of the forensic science com- munity and medical examiner system will sweep broadly into areas of crimi- nal investigation and prosecution, civil litigation, legal reform, investigation of insurance claims, national disaster planning and preparedness, homeland security, certification of federal, state, and local forensic practitioners, public health, accreditation of public and private laboratories, research to improve forensic methodologies, education programs in colleges and universities, and advancing technology. The committee considered whether such a governing entity could be established within an existing federal agency. The National Science Founda- tion (NSF) was considered because of its strengths in leading research and its connections to the research and education communities. NSF is surely capable of building and sustaining a research base, but it has very thin ties to the forensic science community. It would be necessary for NSF to take many untested steps if it were to assume responsibility for the governance of applied fields of science. The committee also considered NIST. In the end analysis, however, NIST did not appear to be a viable option. It has a good program of research targeted at forensic science and law enforcement, but the program is modest. NIST also has strong ties to industry and academia, and it has an eminent history in standard setting and method development. But its ties to the forensic science community are still limited, and it would not be seen as a natural leader by the scholars, scientists, and practitioners in the field. In sum, the committee concluded that neither NSF nor NIST has the breadth of experience or institutional capacity to establish an effective governance structure for the forensic science enterprise. There was also a strong consensus in the committee that no existing or new division or unit within DOJ would be an appropriate location for a new entity governing the forensic science community. DOJâs principal mission is to enforce the law and defend the interests of the United States according to the law. Agencies within DOJ operate pursuant to this mission. The FBI, for example, is the investigative arm of DOJ and its principal mis- sions are to produce and use intelligence to protect the Nation from threats and to bring to justice those who violate the law. The work of these law enforcement units is critically important to the Nation, but the scope of the work done by DOJ units is much narrower than the promise of a strong forensic science community. Forensic science serves more than just law enforcement; and when it does serve law enforcement, it must be equally available to law enforcement officers, prosecutors, and defendants in the criminal justice system. 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. In addition, the com-
18 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES mittee determined that the research funding strategies of DOJ have not adequately served the broad needs of the forensic science community. This is understandable, but not acceptable when the issue is whether an agency is best suited to support and oversee the Nationâs forensic science community. In sum, the committee concluded that advancing science in the forensic sci- ence enterprise is not likely to be achieved within the confines of DOJ. Furthermore, there is little doubt that some existing federal entities are too wedded to the current âfragmentedâ forensic science community, which is deficient in too many respects. Most notably, these existing agencies have failed to pursue a rigorous research agenda to confirm the evidentiary reli- ability of methodologies used in a number of forensic science disciplines. These agencies are not good candidates to oversee the overhaul of the fo- rensic science community in the United States. Finally, some existing federal agencies with other missions occasionally have undertaken projects affecting the forensic science community. These entities are better left to continue the good work that defines their principal missions. More responsibility is not better for these existing entities, nor would it be better for the forensic science community or the Nation. The committee thus concluded that the problems at issue are too seri- ous and important to be subsumed by an existing federal agency. It also concluded that no existing federal agency has the capacity or appropriate mission to take on the roles and responsibilities needed to govern and im- prove the forensic science enterprise. The committee believes that 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 possibleâone with no ties to the past and with the authority and resources to implement a fresh agenda designed to address the problems found by the committee and discussed in this report. A new organization should not be encumbered by the assumptions, expectations, and deficiencies of the existing fragmented infrastructure, which has failed to address the needs and challenges of the forensic science disciplines. This new entity must be an independent federal agency established to address the needs of the forensic science community, and it must meet the following minimum criteria: â¢ t must have a culture that is strongly rooted in science, with strong I ties to the national research and teaching communities, including federal laboratories. â¢ t must have strong ties to state and local forensic entities as well I as to the professional organizations within the forensic science community.
SUMMARY 19 â¢ t must not be in any way committed to the existing system, but I should be informed by its experiences. â¢ It must not be part of a law enforcement agency. â¢ t must have the funding, independence, and sufficient prominence I to raise the profile of the forensic science disciplines and push ef- fectively for improvements. â¢ t must be led by persons who are skilled and experienced in de- I veloping and executing national strategies and plans for standard setting; managing accreditation and testing processes; and devel- oping and implementing rulemaking, oversight, and sanctioning processes. No federal agency currently exists that meets all of these criteria. Recommendation 1: To promote the development of forensic science into a mature field of multidisciplinary research and practice, founded on the systematic collection and analysis of relevant data, Congress should establish and appropriate funds for an independent federal entity, the National Institute of Forensic Science (NIFS). NIFS should have a full-time administrator and an advisory board with expertise in research and education, the forensic science disciplines, physical and life sciences, forensic pathology, engineering, information tech- nology, measurements and standards, testing and evaluation, law, national security, and public policy. NIFS should focus on: (a) establishing and enforcing best practices for forensic sci- ence professionals and laboratories; (b) establishing standards for the mandatory accreditation of forensic science laboratories and the mandatory certifica- tion of forensic scientists and medical examiners/forensic pathologistsâand identifying the entity/entities that will develop and implement accreditation and certification; (c) promoting scholarly, competitive peer-reviewed research and technical development in the forensic science disci- plines and forensic medicine; (d) developing a strategy to improve forensic science research and educational programs, including forensic pathology; (e) establishing a strategy, based on accurate data on the fo- rensic science community, for the efficient allocation of available funds to give strong support to forensic method- ologies and practices in addition to DNA analysis;
20 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES (f) funding state and local forensic science agencies, inde- pendent research projects, and educational programs as recommended in this report, with conditions that aim to advance the credibility and reliability of the forensic sci- ence disciplines; (g) overseeing education standards and the accreditation of forensic science programs in colleges and universities; (h) developing programs to improve understanding of the fo- rensic science disciplines and their limitations within legal systems; and (i) assessing the development and introduction of new tech- nologies in forensic investigations, including a comparison of new technologies with former ones. The benefits that will flow from a strong, independent, strategic, coher- ent, and well-funded federal program to support and oversee the forensic science disciplines in this country are clear: The Nation will (1) bolster its ability to more accurately identify true perpetrators and exclude those who are falsely accused; (2) improve its ability to effectively respond to, attribute, and prosecute threats to homeland security; and (3) reduce the likelihood of convictions resting on inaccurate data. Moreover, establishing the scientific foundation of the forensic science disciplines, providing better education and training, and requiring certification and accreditation will position the forensic science community to take advantage of current and future scientific advances. The creation of a new federal entity undoubtedly will pose challenges, not the least of which will be budgetary constraints. The committee is not in a position to estimate how much it will cost to implement the recom- mendations in this report; this is a matter best left to the expertise of the Congressional Budget Office. What is clear, however, is that Congress must take aggressive action if the worst ills of the forensic science community are to be cured. Political and budgetary concerns should not deter bold, creative, and forward-looking action, because the country cannot afford to suffer the consequences of inaction. It will also take time and patience to implement the recommendations in this report. But this is true with any large, complex, important, and challenging enterprise. The committee strongly believes that the greatest hope for success in this enterprise will come with the creation of the National Institute of Fo- rensic Science (NIFS) to oversee and direct the forensic science community. The remaining recommendations in this report are crucially tied to the creation of NIFS. However, each recommendation is a separate, essential piece of the plan to improve the forensic science community in the United States. Therefore, even if the creation of NIFS is forestalled, the committee
SUMMARY 21 vigorously supports the adoption of the core ideas and principles embedded in each of the following recommendations. Standardized Terminology and Reporting The terminology used in reporting and testifying about the results of forensic science investigations must be standardized. Many terms are used by forensic scientists in scientific reports and in court testimony that de- scribe findings, conclusions, and degrees of association between evidentiary material (e.g., hairs, fingerprints, fibers) and particular people or objects. Such terms include, but are not limited to âmatch,â âconsistent with,â âidentical,â âsimilar in all respects tested,â and âcannot be excluded as the source of.â The use of such terms can and does have a profound effect on how the trier of fact in a criminal or civil matter perceives and evaluates sci- entific evidence. Although some forensic science disciplines have proposed reporting vocabulary and scales, the use of the recommended language is not standard practice among forensic science practitioners. As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should contain, at minimum, âmethods and materials,â âprocedures,â âresults,â âconclu- sions,â and, as appropriate, sources and magnitudes of uncertainty in the procedures and conclusions (e.g., levels of confidence). Some forensic science laboratory reports meet this standard of reporting, but many do not. Some reports contain only identifying and agency information, a brief description of the evidence being submitted, a brief description of the types of analysis requested, and a short statement of the results (e.g., âthe greenish, brown plant material in item #1 was identified as marijuanaâ), and they include no mention of methods or any discussion of measurement uncertainties. Many clinical and testing disciplines outside the forensic science disci- plines have standards, templates, and protocols for data reporting. A good example is the ISO/IEC 17025 standard (commonly called âISO 17025â). ISO 17025 is an international standard published by the International Organization for Standardization (ISO) that specifies the general require- ments for the competence to carry out tests and/or calibrations. These requirements have been used by accrediting agencies to determine what a laboratory must do to secure accreditation. In addition, some SWGs in the forensic disciplines have scoring systems for reporting findings, but these systems are neither uniformly nor consistently used. In other words, al- though appropriate standards exist, they are not always followed. Forensic reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including measures
22 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES of uncertainty in reported results and associated estimated probabilities where possible. Recommendation 2: The National Institute of Forensic Science (NIFS), after review- ing established standards such as ISO 17025, and in consultation with its advisory board, should establish standard terminology to be used in reporting on and testifying about the results of forensic science investigations. Similarly, it should establish model labora- tory reports for different forensic science disciplines and specify the minimum information that should be included. As part of the accreditation and certification processes, laboratories and forensic scientists should be required to utilize model laboratory reports when summarizing the results of their analyses. More and Better Research As noted above, some forensic science disciplines are supported by little rigorous systematic research to validate the disciplineâs basic premises and techniques. There is no evident reason why such research cannot be conducted. Much more federal funding is needed to support research in the forensic science disciplines and forensic pathology in universities and private laboratories committed to such work. The forensic science and medical examiner communities will be im- proved by opportunities to collaborate with the broader science and engi- neering communities. In particular, there is an urgent need for collaborative efforts to (1) develop new technical methods or provide in-depth grounding for advances developed in the forensic science disciplines; (2) provide an interface between the forensic science and medical examiner communities and basic sciences; and (3) create fertile ground for discourse among the communities. NIFS should recommend, implement, and guide strategies for supporting such initiatives. Recommendation 3: Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines. The National Institute of Forensic Science (NIFS) should competitively fund peer-reviewed research in the following areas: (a) Studies establishing the scientific bases demonstrating the validity of forensic methods.
SUMMARY 23 (b) The development and establishment of quantifiable mea- sures of the reliability and accuracy of forensic analyses. Studies of the reliability and accuracy of forensic tech- niques should reflect actual practice on realisticcase sce- narios, averaged across a representative sample of forensic scientists and laboratories. Studies also should establish the limits of reliability and accuracy that analytic methods can be expected to achieve as the conditions of forensic evidence vary. The research by which measures of reliabil- ity and accuracy are determined should be peer reviewed and published in respected scientific journals. (c) The development of quantifiable measures of uncertainty in the conclusions of forensic analyses. (d) Automated techniques capable of enhancing forensic technologies. To answer questions regarding the reliability and accuracy of a forensic analysis, the research needs to distinguish between average performance (achieved across individual practitioners and laboratories) and individual performance (achieved by the specific practitioner and laboratory). Whether a forensic procedure is sufficient under the rules of evidence governing crim- inal and civil litigation raises difficult legal issues that are outside the realm of scientific inquiry. (Some of the legal issues are addressed in Chapter 3.) Best Practices and Standards Although there have been notable efforts to achieve standardization and develop best practices in some forensic science disciplines and the medical examiner system, most disciplines still lack best practices or any coherent structure for the enforcement of operating standards, certifica- tion, and accreditation. Standards and codes of ethics exist in some fields, and there are some functioning certification and accreditation programs, but none are mandatory. In short, oversight and enforcement of operating standards, certification, accreditation, and ethics are lacking in most local and state jurisdictions. Scientific and medical assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute crimi- nal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators. The best sci- ence is conducted in a scientific setting as opposed to a law enforcement setting. Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case,
24 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. Recommendation 4: To improve the scientific bases of forensic science examinations and to maximize independence from or autonomy within the law enforcement community, Congress should authorize and appropri- ate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to state and local jurisdictions for the purpose of removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutorsâ offices. Recommendation 5: The National Institute of Forensic Science (NIFS) should encourage research programs on human observer bias and sources of human error in forensic examinations. Such programs might include stud- ies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analyses are influenced by knowledge regarding the background of the suspect and the investigatorâs theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with its advisory board, NIFS should develop stan- dard operating procedures (that will lay the foundation for model protocols) to minimize, to the greatest extent reasonably possible, potential bias and sources of human error in forensic practice. These standard operating procedures should apply to all forensic analyses that may be used in litigation. Recommendation 6: To facilitate the work of the National Institute of Forensic Science (NIFS), Congress should authorize and appropriate funds to NIFS to work with the National Institute of Standards and Technology (NIST), in conjunction with government laboratories, universi- ties, and private laboratories, and in consultation with Scientific Working Groups, to develop tools for advancing measurement, validation, reliability, information sharing, and proficiency testing in forensic science and to establish protocols for forensic examina-
SUMMARY 25 tions, methods, and practices. Standards should reflect best prac- tices and serve as accreditation tools for laboratories and as guides for the education, training, and certification of professionals. Upon completion of its work, NIST and its partners should report find- ings and recommendations to NIFS for further dissemination and implementation. Quality Control, Assurance, and Improvement In a field such as medical diagnostics, a health care provider typically can track a patientâs progress to see whether the original diagnosis was accurate and helpful. For example, widely accepted programs of quality control ensure timely feedback involving the diagnoses that result from mammography. Other examples of quality assurance and improvementâ including the development of standardized vocabularies, ontologies, and scales for interpreting diagnostic tests and developing standards for accredi- tation of servicesâpervade diagnostic medicine. This type of systematic and routine feedback is an essential element of any field striving for continuous improvement. The forensic science disciplines likewise must become a self- correcting enterprise, developing and implementing feedback loops that allow the profession to discover past mistakes. A particular need exists for routine, mandatory proficiency testing that emulates a realistic, representa- tive cross-section of casework, for example, DNA proficiency testing. Recommendation 7: Laboratory accreditation and individual certification of forensic science professionals should be mandatory, and all forensic science professionals should have access to a certification process. In de- termining appropriate standards for accreditation and certification, the National Institute of Forensic Science (NIFS) should take into account established and recognized international standards, such as those published by the International Organization for Standard- ization (ISO). No person (public or private) should be allowed to practice in a forensic science discipline or testify as a forensic sci- ence professional without certification. Certification requirements should include, at a minimum, written examinations, supervised practice, proficiency testing, continuing education, recertification procedures, adherence to a code of ethics, and effective disciplinary procedures. All laboratories and facilities (public or private) should be accredited, and all forensic science professionals should be certi- fied, when eligible, within a time period established by NIFS.
26 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES Recommendation 8: Forensic laboratories should establish routine quality assurance and quality control procedures to ensure the accuracy of forensic analyses and the work of forensic practitioners. Quality control procedures should be designed to identify mistakes, fraud, and bias; confirm the continued validity and reliability of standard operating procedures and protocols; ensure that best practices are being followed; and correct procedures and protocols that are found to need improvement. Codes of Ethics A number of forensic science organizationsâsuch as AAFS, the Mid- western Association of Forensic Scientists, ASCLD, and NAMEâhave adopted codes of ethics. The codes that exist are sometimes comprehensive, but they vary in content. While there is no reason to doubt that many foren- sic scientists understand their ethical obligations and practice in an ethical way, there are no consistent mechanisms for enforcing any of the existing codes of ethics. Many jurisdictions do not require certification in the same way that, for example, states require lawyers to be licensed. Therefore, few forensic science practitioners face the threat of official sanctions or loss of certification for serious ethical violations. And it is unclear whether and to what extent forensic science practitioners are required to adhere to ethics standards as a condition of employment. Recommendation 9: The National Institute of Forensic Science (NIFS), in consultation with its advisory board, should establish a national code of ethics for all forensic science disciplines and encourage individual societ- ies to incorporate this national code as part of their professional code of ethics. Additionally, NIFS should explore mechanisms of enforcement for those forensic scientists who commit serious ethi- cal violations. Such a code could be enforced through a certification process for forensic scientists. Insufficient Education and Training Forensic science examiners need to understand the principles, practices, and contexts of scientific methodology, as well as the distinctive features of their specialty. Ideally, training should move beyond apprentice-like
SUMMARY 27 transmittal of practices to education based on scientifically valid principles. In addition to the practical experience and learning acquired during an internship, a trainee should acquire rigorous interdisciplinary education and training in the scientific areas that constitute the basis for the particu- lar forensic discipline and instruction on how to document and report the analysis. A trainee also should have working knowledge of basic quanti- tative calculations, including statistics and probability, as needed for the applicable discipline. To correct some of the existing deficiencies, it is crucially important to improve undergraduate and graduate forensic science programs. Legitimiza- tion of practices in forensic disciplines must be based on established scien- tific knowledge, principles, and practices, which are best learned through formal education. Apprenticeship has a secondary role, and under no cir- cumstances can it supplant the need for the scientific basis of education in and the practice of forensic science. In addition, lawyers and judges often have insufficient training and background in scientific methodology, and they often fail to fully com- prehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence that is offered in trial. Such training is essential, because any checklist for the admissibility of scientific or technical testimony is imperfect. Conformance with items on a checklist can suggest that testimony is reliable, but it does not guarantee it. Better connections must be established and promoted between experts in the forensic science disciplines and law schools, legal scholars, and practitio- ners. The fruits of any advances in the forensic science disciplines should be transferred directly to legal scholars and practitioners (including civil litigators, prosecutors, and criminal defense counsel), federal, state, and local legislators, members of the judiciary, and law enforcement officials, so that appropriate adjustments can be made in criminal and civil laws and procedures, model jury instructions, law enforcement practices, litigation strategies, and judicial decisionmaking. Law schools should enhance this connection by offering courses in the forensic science disciplines, by offering credit for forensic science courses taken in other colleges, and by developing joint degree programs. And judges need to be better educated in forensic science methodologies and practices. Recommendation 10: To attract students in the physical and life sciences to pursue gradu- ate studies in multidisciplinary fields critical to forensic science practice, Congress should authorize and appropriate funds to the National Institute of Forensic Science (NIFS) to work with appro- priate organizations and educational institutions to improve and
28 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES develop graduate education programs designed to cut across orga- nizational, programmatic, and disciplinary boundaries. To make these programs appealing to potential students, they must include attractive scholarship and fellowship offerings. Emphasis should be placed on developing and improving research methods and methodologies applicable to forensic science practice and on fund- ing research programs to attract research universities and students in fields relevant to forensic science. NIFS should also support law school administrators and judicial education organizations in establishing continuing legal education programs for law students, practitioners, and judges. The Medicolegal Death Investigation System Although steps have been taken to transform the medicolegal death investigation system, the shortage of resources and lack of consistent edu- cational and training requirements (particularly in the coroner system)26 prevent the system from taking full advantage of toolsâsuch as CT scans and digital X-raysâthat the medical system and other scientific disciplines have to offer. In addition, more rigorous efforts are needed in the areas of accreditation and adherence to standards. Currently, requirements for practitioners vary from nothing more than age and residency requirements to certification by the American Board of Pathology in forensic pathology. Funds are needed to assess the medicolegal death investigation system to determine its status and needs, using as a benchmark the current re- quirements of NAME relating to professional credentials, standards, and accreditation. And funds are needed to modernize and improve the medico- legal death investigation system. As it now stands, medical examiners and coroners (ME/Cs) are essentially ineligible for direct federal funding and grants from DOJ, DHS, or the Department of Health and Human Services (through the National Institutes of Health). The Paul Coverdell National Forensic Science Improvement Act is the only federal grant program that names medical examiners and coroners as eligible for grants. However, ME/Cs must compete with public safety agencies for Coverdell grants; as a result, the funds available to ME/Cs are inadequate. The simple reality is that the program has not been sufficiently funded to provide significant improvements in ME/C systems. In addition to direct funding, there are other initiatives that should be pursued to improve the medicolegal death investigation system. The Association of American Medical Colleges and other appropriate profes- 26â Institute of Medicine. 2003. Workshop on the Medicolegal Death Investigation System. Washington, DC: The National Academies Press.
SUMMARY 29 sional organizations should organize collaborative activities in education, training, and research to strengthen the relationship between the medical examiner community and its counterparts in the larger academic medical community. Medical examiner offices with training programs affiliated with medical schools should be eligible to compete for funds. Funding should be available to support pathologists seeking forensic fellowships. In addition, forensic pathology fellows could be allowed to apply for medical school loan forgiveness if they stay full time at a medical examinerâs office for a reasonable period of time. Additionally, NIFS should seek funding from Congress to support the joint development of programs to include medical examiners and medical examiner offices in national disaster planning, preparedness, and conse- quence management, involving the Centers for Disease Control and Pre- vention (CDC) and DHS. Uniform statewide and interstate standards of operation would be needed to assist in the management of cross-juris- dictional and interstate events. NIFS should support a federal program underwriting the development of software for use by ME/C systems for the management of multisite, multiple fatality events. NIFS should work with groups such as the National Conference of Commissioners on Uniform State Laws, the American Law Institute, and NAME, in collaboration with other appropriate professional groups, to up- date the 1954 Model Post-Mortem Examinations Act and draft legislation for a modern model death investigation code. An improved code might, for example, include the elements of a competent medical death investigation system and clarify the jurisdiction of the medical examiner with respect to organ donation. The foregoing ideas must be developed further before any concrete plans can be pursued. There are, however, a number of specific recom- mendations, which, if adopted, will help to modernize and improve the medicolegal death investigation system. These recommendations deserve the immediate attention of Congress and NIFS. Recommendation 11: To improve medicolegal death investigation: (a) Congress should authorize and appropriate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to states and jurisdictions to establish medical examiner systems, with the goal of replacing and eventu- ally eliminating existing coroner systems. Funds are needed to build regional medical examiner offices, secure neces- sary equipment, improve administration, and ensure the
30 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES education, training, and staffing of medical examiner of- fices. 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. (b) Congress should appropriate resources to the National Institutes of Health (NIH) and NIFS, jointly, to support research, education, and training in forensic pathology. NIH, with NIFS participation, or NIFS in collaboration with content experts, should establish a study section to establish goals, to review and evaluate proposals in these areas, and to allocate funding for collaborative research to be conducted by medical examiner offices and medical universities. In addition, funding, in the form of medical student loan forgiveness and/or fellowship support, should be made available to pathology residents who choose fo- rensic pathology as their specialty. (c) NIFS, in collaboration with NIH, the National Association of Medical Examiners, the American Board of Medicolegal Death Investigators, and other appropriate professional organizations, should establish a Scientific Working Group (SWG) for forensic pathology and medicolegal death inves- tigation. The SWG should develop and promote standards for best practices, administration, staffing, education, train- ing, and continuing education for competent death scene investigation and postmortem examinations. Best practices should include the utilization of new technologies such as laboratory testing for the molecular basis of diseases and the implementation of specialized imaging techniques. (d) medical examiner offices should be accredited pursu- All ant to NIFS-endorsed standards within a timeframe to be established by NIFS. (e) federal funding should be restricted to accredited of- All fices that meet NIFS-endorsed standards or that demon- strate significant and measurable progress in achieving accreditation within prescribed deadlines. (f) medicolegal autopsies should be performed or super- All vised by a board certified forensic pathologist. This re- quirement should take effect within a timeframe to be established by NIFS, following consultation with govern- ing state institutions.
SUMMARY 31 AFIS and Database Interoperability Great improvement is necessary in AFIS interoperability. Crimes may go unsolved today simply because it is not possible for investigating agen- cies to search across all the databases that might hold a suspectâs finger- prints or that may contain a match for an unidentified latent print from a crime scene. It is also possible that some individuals have been wrongly convicted because of the limitations of fingerprint searches. At present, serious practical problems pose obstacles to the achievement of nationwide AFIS interoperability. These problems include convincing AFIS equipment vendors to cooperate and collaborate with the law en- forcement community and researchers to create and use baseline standards for sharing fingerprint data and create a common interface. Second, law enforcement agencies lack the resources needed to transition to interoper- able AFIS implementations. Third, coordinated jurisdictional agreements and public policies are needed to allow law enforcement agencies to share fingerprint data more broadly. Given the disparity in resources and information technology expertise available to local, state, and federal law enforcement agencies, the rela- tively slow pace of interoperability efforts to date, and the potential gains from increased AFIS interoperability, the committee believes that a broad- based emphasis on achieving nationwide fingerprint data interoperability is needed. Recommendation 12: Congress should authorize and appropriate funds for the National Institute of Forensic Science (NIFS) to launch a new broad-based effort to achieve nationwide fingerprint data interoperability. To that end, NIFS should convene a task force comprising relevant experts from the National Institute of Standards and Technology and the major law enforcement agencies (including representatives from the local, state, federal, and, perhaps, international levels) and industry, as appropriate, to develop: (a) standards for representing and communicating image and minutiae data among Automated Fingerprint Identifica- tion Systems. Common data standards would facilitate the sharing of fingerprint data among law enforcement agencies at the local, state, federal, and even international levels, which could result in more solved crimes, fewer wrongful identifications, and greater efficiency with respect to fingerprint searches; and
32 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES (b) baseline standardsâto be used with computer algorithmsâ to map, record, and recognize features in fingerprint Âimages, and a research agenda for the continued improvement, refineÂment, and characterization of the accuracy of these algorithms (including quantification of error rates). These steps toward AFIS interoperability must be accompanied by fed- eral, state, and local funds to support jurisdictions in upgrading, operating, and ensuring the integrity and security of their systems; retraining current staff; and training new fingerprint examiners to gain the desired benefits of true interoperability. Additionally, greater scientific benefits can be real- ized through the availability of fingerprint data or databases for research purposes (using, of course, all the modern security and privacy protections available to scientists when working with such data). Once created, NIFS might also be tasked with the maintenance and periodic review of the new standards and procedures. Forensic Science Disciplines and Homeland Security Good forensic science and medical examiner practices are of clear value from a homeland security perspective, because of their roles in bringing criminals to justice and in dealing with the effects of natural and human- made mass disasters. Forensic science techniques (e.g., the evaluation of DNA fragments) enable more thorough investigations of crime scenes that have been damaged physically. Routine and trustworthy collection of digital evidence, and improved techniques and timeliness for its analysis, can be of great potential value in identifying terrorist activity. Therefore, the foren- sic science community has a role to play in homeland security. However, to capitalize on this potential, the forensic science and medical examiner communities must be well interfaced with homeland security efforts, so that they can contribute when needed. To be successful, this interface will require the establishment of good working relationships between federal, state, and local jurisdictions, the creation of strong security programs to protect data transmittals between jurisdictions, the development of addi- tional training for forensic scientists and crime scene investigators, and the promulgation of contingency plans that will promote efficient team efforts on demand. Policy issues relating to the enforcement of homeland security are not within the scope of the committeeâs charge and, thus, are beyond the scope of the report. It can hardly be doubted, however, that improvements in the forensic science community and medical examiner system could greatly enhance the capabilities of homeland security.
SUMMARY 33 Recommendation 13: Congress should provide funding to the National Institute of Fo- rensic Science (NIFS) to prepare, in conjunction with the Centers for Disease Control and Prevention and the Federal Bureau of Investigation, forensic scientists and crime scene investigators for their potential roles in managing and analyzing evidence from events that affect homeland security, so that maximum evidentiary value is preserved from these unusual circumstances and the safety of these personnel is guarded. This preparation also should include planning and preparedness (to include exercises) for the interoper- ability of local forensic personnel with federal counterterrorism organizations.