It's Evident

Back

The NAS Report What Has Changed?
Leeanne Frazier, Research Attorney

Twenty months have passed since the National Academy of Sciences (NAS) released its report on the state of forensic science in America, Strengthening Forensic Science in the United States: A Path Forward, and it seems an appropriate time to assess how much has changed as a result of the recommendations offered in the report. While the recommendations put forth by the NAS are laudable and deserve attention, the reality of the current economic environment presents a large obstacle to any implementation of the recommendations. As the federal and state governments experience severe budget crunches, the result is slow change in small steps. Added to the budgetary issues, some law enforcement agencies are waiting for direction from the federal government, lest they implement changes that later become insufficient or invalid.
1 Despite these problems, there has been important movement toward achieving the goals promulgated by the NAS in February 2009. These changes are discussed below.

Fingerprint Database Sharing

Recommendation 12 in the NAS report called for the development of nationwide interoperability among Automated Fingerprint Identification Systems (AFIS) used by federal and state law enforcement. Even related agencies within the federal government were unable to sync AFIS databases due to differences in operating platforms among AFIS vendors, but the FBI and Homeland Security made the first step towards breaking down this technological barrier when the agencies completed the first two phases of a plan that will eventually permit authorized users at all state and federal law enforcement agencies to have simultaneous access to the FBI's Integrated Automated Fingerprint Systems (IAFIS) and Homeland Security's Automated Biometric Identification System (IDENT).2 The announcement came in July, and while the initiation of this effort predated the publication of the NAS report, the intended goal provides the blueprint for expanding this integration to the state and local level where information sharing is very limited.

Congress

The Congressional response to the report was the introduction of a bill entitled the National Criminal Justice Commission Act of 2010, which passed the House on July 27, but is still awaiting passage in the Senate.3 This legislation would create the National Criminal Justice Commission, a 14-member group charged with reviewing all areas of the criminal justice system at the federal, state, local, and tribal levels. The function of the committee is solely advisory, and it has eighteen months following its formation to submit a report to the Congress, the President, state, local and tribal governments. The commission is specifically directed to provide recommendations related to "changes in oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, reduce recidivism, improve cost-effectiveness, and ensure the interests of justice."4 Additionally, the commission must take into account the limited resources and manpower of the state criminal justice agencies it is assessing. Commission members will be appointed by the President and various members of Congress and are to be drawn from the following areas of expertise: law enforcement, criminal justice, national security, prison and jail administration, prisoner reentry, public health, victims' rights, civil liberties, court administration, social services and state, local, and tribal government.5 While it is not the independent, policy-making agency recommended in the report, it could provide more clarification on what is lacking in the criminal justice system and perhaps lead to the creation of an independent body.

National Science and Technology Council

The White House's National Science and Technology Council (NSTC) formed its own subcommittee on forensic science in direct response to the findings in the NAS report. It was established to provide practical recommendations on the forensic science policies, procedures, and plans used in the areas of national security, criminal justice, and the medical examiner/coroner systems. While its focus is on ensuring validity and reliability in the federal government's forensic science programs, it must also look to develop the adoption of best practices among local and state forensic science entities. The subcommittee has five interagency working groups that are tasked with reviewing the following areas: education and ethics; accreditation and certification; outreach and communications; research, development, testing, and evaluation; and standards, practices, and protocols.6 No written materials have been issued by the working groups at this point, but the subcommittee did work in conjunction with Northwestern University's School of Law to host a conference on cognitive bias in forensic science on September 23-24, 2010.7

Validation Studies

The message leveled in the NAS report that validation research was needed in the areas of identification science was heeded by public funding sources and a number research grants have been awarded to develop this area of scientific research. In particular, Virginia Tech was awarded a two-year, $854,907 grant in November 2009 from the National Institute of Justice (NIJ) to research and develop a quantitative approach to the establishment of a standard for assessing the sufficiency of fingerprint patterns.8 As is widely known, there is no industry standard for determining how many markers are sufficient to match a fingerprint pattern and this study could be the first step toward implementing a standard minimum for fingerprint experts. In a related grant award, UCLA received $866,764 from NIJ in February 2010 to develop a method to quantify accuracy and error rates in latent fingerprints.9 Having a quantifiable error rate would quiet many of the critics that claim fingerprint matching lacks a scientific foundation and should be abandoned. Additionally, the Midwest Forensics Resource Center, part of Ames Laboratory at the Iowa State University, recently funded research at the University of Wisconsin that will attempt to validate physical matching in trace evidence using automobile parts.10

Forensic Science in Court

Finally, the NAS report is appearing on a frequent basis in the courtroom. Legal commentators are encouraging defense attorneys to challenge the introduction of forensic pattern/impression evidence based on lack of scientific validity, confirmation bias and lack of supporting documentation with test results, using the NAS report as a factor in their arguments.11 Consequently, courts are becoming more critical of forensic evidence and limiting what an expert can include in his/her testimony. For example, in U.S. v. Cerna, the defense filed motions to exclude the testimony of firearms and fingerprint identification experts on the grounds the methods were unreliable. It was specifically argued weaknesses identified in the NAS report related to the use of the ACE-V and the theory of identification endorsed by the Association of Firearm and Toolmark Examiners rendered firearms/toolmarks and fingerprint identification evidence unreliable. The court rejected the wholesale exclusion of the identification evidence and reasoned the report identified issues with subjective applications of these methods by individual examiners, not problems with the methods themselves. Further, it was held that concerns about reliability could be tempered by limiting the standards experts assert during testimony. To wit, the firearms expert was held to characterizing his conclusions to a "reasonable degree of certainty in the ballistics field"13 and the fingerprint examiner to a "reasonable degree of certainty in the latent print examination field".14

States courts are adopting a similar approach to NAS report-based challenges. The Massachusetts Supreme Court faced a challenge to use of the ACE-V methodology in Commonwealth v. Gambora15. The court declined to directly consider issues surrounding the general reliability of fingerprint comparisons discussed in the NAS report because debate within the scientific committee about this issue is ongoing. Additionally, the court noted the mere existence of the report would not mandate a Daubert hearing for every admission of expert fingerprint identification testimony. Like the case above, the distinguishing aspect for purposes of admission was how reliably the ACE-V methodology was used in a specific comparison.16

What all of this information implies is that until Congress takes affirmative steps to enact legislation designed to coordinate regulation little change will happen, or at best, happen very slowly. Equally important, much of the change will hinge on research that will take years to complete. Some of that research is already underway but funding constraints mean robust development of neglected areas is far off. While it may be disheartening to strong supporters of the report to see so little progress, the report did force the criminal justice system to critically assess the state of forensic science, an awareness that is full of potential change.

Up

1  Andy Furillo, "California Crime Lab Task Force Decides to Disband", The Sacramento Bee (Jun. 18, 2010).
2  Press Release, FBI, Fingerprint Technology Making Two Systems Work as One (Jul. 26, 2010) available at http://www.fbi.gov/page2/july10/fingerprints_072610.html).
3  S. 714, 111th Cong. (2010). The bill was placed on the Senate Calendar under general orders as of May 6, 2010.
4  Id. at 5(b).
5  Id. at 6(b)(1).
6  National Science and Technology Council, Committee on Science, Subcommittee on Forensic Science, available at http://www.forensicscience.gov/.
7  Another working group, the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), issued advisory standards for the documentation of analysis, comparison, evaluation, and verification of latent prints in February 2010. It also issued minimum standards for the training and competency assessment of fingerprint examiners at the beginning of this year.
8 Barbara L. Micale, "University Awarded Grant to Study Quantitative Approach to Forensic Fingerprint Comparison, Identification" (Dec. 2, 2009) available at http://www.vtnews.vt.edu/articles/2009/12/2009-898.html.
9  Press Release, Lauri Gavel, UCLA, UCLA Professors Awarded Major Federal Grant to Study Error Rates in Fingerprint Evidence (Feb. 11, 2010) available at http://newsroom.ucla.edu/portal/ucla/two-ucla-professors-awarded-national-153642.aspx.
10  Midwest Forensics Resource Center, "2009 MFRC-funded Projects" (Nov. 2009) available at https://www.mfrc.ameslab.gov/Funded_Projects_2009.htm.
11  Amelia L. Bizzaro, "Challenging the Admission of Forensic Evidence", Wis. Law., vol. 8 (Sept. 2010).
12  No. CR 08-0730, 2010 WL 3448528 (N.D. Cal. Sept. 1, 2010).
13  Id. at 5.
14  Id. at 7.
15  457 Mass. 715, 933 N.E.2d 50 (Mass. 2010).
16  Id. at 729.