Strengthening Forensic Science in the United States A Path Forward (2009) / Chapter Skim
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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)
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Experts who provided testimony included federal agency officials; academics 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 investigators; 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)
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the assessment of forensic methods and technologies -- the 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)
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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.
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It is therefore unsurprising that Congress instructed this committee to, among other things, "assess the present and future resource needs of the forensic science community," "make recommendations for maximizing the use of forensic technologies and techniques," "make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners," and "disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques." These are among the pressing issues facing the forensic science community. The best professionals in the forensic science disciplines invariably are hindered in their work because these and other problems persist.
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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 laboratories is not required in most jurisdictions.
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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.
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:127. The findings of forensic science experts are vulnerable to cognitive and contextual bias.
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Two very important questions should underlie the law's 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)
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a scientific technique's degree of acceptance within a relevant scientific community.14 In the end, however, the Court emphasized that the inquiry under Rule 702 is "a flexible one."15 The Court expressed confidence in the adversarial system, noting that "[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."16 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.
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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 questions in criminal cases. The situation appears to be very different in civil cases.
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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.
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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 disciplines, 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 science community.
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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.
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Moreover, funding for academic research is limited and requires law enforcement collaboration, 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 research relevant to advancing the forensic science disciplines.
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The forensic science enterprise needs strong governance to adopt and promote an aggressive, long-term agenda to help strengthen the forensic science disciplines. Governance must be strong enough -- and independent enough -- to identify the limitations of forensic science methodologies, and must be well connected with the Nation's scientific research base to effect meaningful advances in forensic science practices.
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Oversight of the forensic science community and medical examiner system will sweep broadly into areas of criminal 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.
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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: • 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.
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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;
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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.
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Such terms include, but are not limited to "match," "consistent with," "identical," "similar in all respects tested," and "cannot be excluded as the source of." 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 scientific 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.
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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)
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(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, certification, and accreditation.
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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 prosecutors' offices. Recommendation 5: The National Institute of Forensic Science (NIFS)
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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 selfcorrecting enterprise, developing and implementing feedback loops that allow the profession to discover past mistakes.
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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.
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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.
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. The Paul Coverdell National Forensic Science Improvement Act is the only federal grant program that names medical examiners and coroners as eligible for grants.
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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 consequence management, involving the Centers for Disease Control and Prevention (CDC)
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(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)
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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 relatively slow pace of interoperability efforts to date, and the potential gains from increased AFIS interoperability, the committee believes that a broadbased emphasis on achieving nationwide fingerprint data interoperability is needed.
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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 humanmade mass disasters. Forensic science techniques (e.g., the evaluation of DNA fragments)
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This preparation also should include planning and preparedness (to include exercises) for the interoper ability of local forensic personnel with federal counterterrorism organizations.
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