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March 18, 2009 - Senate Judiciary Hearing: The Need to Strengthen Forensic Science in the United States: The National Academy of Science's Report on a Path Forward
Leeanne Frazier, Research Attorney

Senate Members Present: Committee Chairman Leahy and Committee Member Durbin

Testifying Witness: The Honorable Harry T. Edwards, D.C. Circuit Court of Appeals

Opening remarks by Senator Leahy spoke to conclusions from the NAS report and salient facts about the capacity of forensic labs generally. Those remarks included the following:

• reality of forensic practice in America is nothing like TV depictions of forensic technicians visiting crime scenes and fully funded crime labs with state-of-the-art equipment
• lack of funding compromises the reliability of the work coming from labs as evidenced by recent lab shutdowns in Detroit and Houston due to faulty test results
• as of 2005, 350,000 pieces of evidence were backlogged due to inadequate training, staff and equipment
• 1 out of every 5 labs in the U.S. do not qualify for accreditation by ASCLD
• Forensic science is important to both criminal justice and homeland security
• Glaring example of non-standardized interpretation of evidence is fingerprint comparison, as exampled by the FBI misidentifying an Oregon attorney as the suspect in the Madrid train bombing in 2004

Judge Edwards began his testimony by reviewing the key findings of the NAS report. The most important of these include:

• Federal oversight needed to solve problems plaguing the forensic science community
• The quality of forensic practice varies widely due to the absence of research establishing the reliability of forensic disciplines and quantifiable measures of uncertainty in conclusions. An example is the lack of research on human observer bias and the sources of human error
  
• No research on new technology
• Lack of lab autonomy
• Shortage of training programs
• Absence of certification requirements and lab accreditation
• No standard terminology to describe testing results
• Lack of effective oversight

The primary solution offered to cure inadequacies in the forensic fields is interdisciplinary, peer-reviewed scientific research to determine the accuracy and reliability of present forensic practices and additional research to achieve technological advancements. Additional changes necessary to support the effectiveness of the research include - upgrading organization structures, establishing educational programs, adopting uniform and enforceable practice standards, mandating practitioner certification and lab accreditation and ensuring operational autonomy of labs.

Present system lacks adequate governmental structures to address systemic weaknesses and consequently need an independent federal agency to regulate and reform the system.

Questions and topics of discussion posed to Judge Edwards:

• Coroner System: Why do such systems still exist when their abolishment was recommended in 1928 due to lack of standard death investigation training requirements? There is no clear answer but possibilities include political inertia and state law codifying a coroner system. This is good example of change that will happen if the federal government is involved in regulation. However, having a forensic science degree does not mean one is qualified to perform forensic testing, which is why educational standards are needed, including garnering interest among universities in interdisciplinary forensic science studies. At present, no such research or dedicated education programs exist.
• Expert Qualifications: Wouldn't law enforcement want better training to prevent attacks by defense attorneys on expert qualifications? Lack of adequate training and education is easier to expose if mandatory certifications are in place because it then becomes easier for judges to determine who is qualified. Presently, experience in a particular area is enough to qualify under Fed. Rule 702 and certifications are not necessary. However, experience does not prove one is qualified if present practices are deficient.
• New Federal Oversight: Example of botched ballistics testing from Detroit crime lab resulting in necessary review of 147 cases used to inquire whether an existing organization has the ability to oversee forensic science in this country, like the National Science Foundation. No, it lacks the expertise and organization necessary to address problems and ensure that forensic science is not reliant on law enforcement. A new entity with people from multiple disciplines and no agenda is needed. The Key to improvement is scientific research, along with resource sharing among jurisdictions to get the best resources distributed. Additionally, labs need autonomy to perform reliability research.
• Fingerprints: General discussion about why fingerprints generally accepted as infallible. Fingerprints have a long history and results have long been presented as having a zero error rate, a scientific impossibility. While testing methods for fingerprints are more reliable than those used by other disciplines, no research exists that shows accuracy in hard cases and examiners cannot quantify the certainty of their results. San Jose Mercury News reported on fingerprint examiners directed not to testify in court if they could not certify a match. This highlights why national standards for reporting requirements and the information included in forensic lab reports are needed.
• Educational Programs: Justice for All Act up for reauthorization this year and the NAS report should guide Congress about funding and training. A federal entity is needed to get schools interested in research to support the forensic disciplines. While there are some adequate programs, they are not enough to more forward in the direction needed to bring all forensic practices into line. This can only come from interdisciplinary research and training because training within singular forensic fields does not address whether the field is valid and reliable.