May 13, 2009 - House Subcommittee on Crime, Terrorism, and Homeland Security (House Committee on the Judiciary) Hearing on The National Research Council's Publication "Strengthening Forensic Science in the United States: A Path Forward"

House Members Present: Committee Members Rep. Bobby Scott, Rep. Louie Gohmert, Rep. Ted Poe and Rep. Anthony Weiner

Testifying Witnesses: Kenneth Melson, Acting Director Bureau of Alcohol, Tobacco, Firearms and Explosives; Peter M. Marone, Director Virginia Department of Forensic Science; John W. Hicks, Director Northeast Regional Forensic Institute; Peter Neufeld, Co-Director The Innocence Project

Opening remarks by Rep. Scott spoke to the broad scope of the current state of forensic sciences in the US. Those remarks included the following:

• The reliability of forensic science has been brought into question by the National Academy of Sciences (NAS) report.
• DNA is the most reliable forensic science, allowing scientists to use genetic evidence to identify victims with complete accuracy and has proven the innocence of defendants in 233 cases of wrongful conviction.
• In 50 % of wrongful conviction cases other forensic sciences besides DNA were used and likely contributed to the wrongful conviction, and this raises questions about the reliability of other types of forensic evidence besides DNA.
• The most pressing problem in the forensic science community is the need for a comprehensive knowledge base for most forensic fields besides DNA.
• The current problems plaguing the forensic science community are (1) a lack of uniform standards and (2) poor oversight.
• Trial judges rarely exclude forensic evidence even though the reliability of the evidence is not insured, while lawyers lack training to question experts about forensic evidence and their conclusions.
• There is a need for a new federal entity, the National Institute of Forensic Science (NIFS), which will be tasked with overseeing all forensic science operations in the US, including establishing best practices, accreditation standards, and research initiatives.

Rep. Gohmert began his remarks by talking about the NAS report and its call for forensic science reform. Those remarks included the following:

• The NAS report remarked that nuclear DNA testing is now the gold standard against which all other forensic disciplines are measured; conversely, the NAS report called many other forensic science disciplines into question, such as pattern evidence like toolmarks, ballistics and friction ridge or fingerprint analysis.
• This questioning of forensic science disciplines has caused concern in the legal profession, as evidenced by many defense attorneys now citing the NAS report findings in post-conviction motions and appeals; these defense attorneys are citing problems with those applying the forensic science, and not with the science itself.
• Given our current economic climate, is it smart to create an entirely new agency (NIFS) to replicate what other state and federal agencies are all ready doing; this could be costly with only moderate success; the NAS report did not report what the cost of creating NIFS would be, but left this task to the congressional budget office<./li>

Mr. Melson began his testimony by touching on NAS report recommendations that the forensic science community has already addressed, including the following key points:

• Laboratory accreditation under ISO/IEC 17025 programs are already in place, as are Scientific Working Groups (SWGs)
• A uniform code of ethics for laboratories has been adopted and NIJ grant solicitations for validation research have been issued and grant-funded research into context and confirmation bias has begun.
• Congress has charged the National Research Council (NRC) to assess the present and future needs of the forensic science community – including state and local crime laboratories, medical examiners and coroners. The NAS report did not create a gap analysis or needs assessment with respect to funding requirements, and the cost of achieving the NAS report recommendations are important and pressing.
• The Presidential budget includes $35 million for Paul Coverdell Forensic Science Improvement Grants for anticipation of assessment.
• There have been significant advances in the accreditation programs with regards to report writing and terminology, such as working with American Society of Crime Lab Directors (ASCLD) to enhance reporting guidelines and consistent use of terminology.
• NIJ is working with National Institute of Standards and Technology (NIST) on Automated Fingerprint Identification System (AFIS) interoperability.
• Wants to work with congress to refine comprehensive approach including executive branch action and legislation to address serious issues raised by NRC report.
• Mr. Melson does not support two items recommended by the NAS report, (1) the creation of NIFS and (2) the removal of all forensic laboratories from the administrative control of prosecutors or law enforcement agencies.

Mr. Marone simplified the NAS report into scientific and technical challenges that must be met for the forensic science community to operate to its full potential, organizing his testimony into the follow four categories:

• Resources
  • An annual assessment or requirements analysis needs to be performed to set forth a valid national forensic science strategy.
  • We need to focus on actual capacity enhancement and methodology enhancement and not solely on laboratory backlog reduction.
  • The amount of funding needs to adequate for all forensic science disciplines because the funding currently available falls short of what is necessary.
  • Forensic science providers include crime scene units, identification units, and fingerprint units in police departments. There are approximately 17,000 police and sheriff departments in the US, and an estimated 11,000 forensic science provider units in those police departments, in addition to the 400 plus publicly funded laboratories.
• Research
  • Some forensic science disciplines need further research to provide proper underlying validation for methods in common use and a basis for more precise statements about their reliability and precision.
  • In addition to the investigation of limits on the forensic techniques themselves, research is needed in the area of context effect and examiner bias.
• Standardization
  • Most laboratories are moving to the direction of accreditation – in the 2005 published census of publically funded crime laboratories, 82% of public laboratories were accredited, and undoubtedly the number is higher now.
  • Forensic science providers need to be notified of the existence of accreditation programs which are appropriate for them.
  • Mr. Marone fully supports mandatory accreditation, but believes that the existing structure should be bolstered because there is no need to create new certification or accreditation programs when these already exist.
• Education
  • There is a need to support a robust educational component in institutions applying to the program for accreditation.
  • In the past five years the Forensic Science Education Programs Accreditation Commission (FEPAC) has been successful in raising the scientific rigor for programs which have been accredited.

Mr. Hicks discussed the NAS report in the following testimony:

• There is no need for a separate independent agency such as NIFS
• We should look to the DNA experience to see how coordination successfully applied to the emergence of new DNA technology. Three key agencies played a role in advancing the technology of DNA: the FBI, NIJ, and NIST.
• The primary recommendations of the NAS report provide funding directed at promoting scholarly, competitive, peer reviewed research that addresses issues of accuracy, validity, and reliability in forensic science disciplines.
• NIST should apply its expertise in applying some of the data being called for.
• The most efficient and effective way to address the NAS recommendations is to assure you have high levels of coordination among agencies.
• Technical Working Groups (TWGs), now Scientific Working Groups (SWGs), have been accepted by virtually all disciplines, and this kind of model might be useful to follow to articulate standards and achieve uniformity in the forensic science disciplines.

Mr. Neufeld offered the following testimony regarding the NAS report:

• Saying in court that a piece of forensic evidence is 'similar to' or 'matches' is not sufficiently scientific enough to be relied upon.
• In other fields we don't unleash something on the public without testing first to see if it is adequately validated, and the hypothesis that a certain piece of evidence left at crime scene may have come from a particular defendant hasn't been adequately validated.
• Users, such as those making up TWGs and SWGs, should not be allowed to decide for themselves when a scientific product is ready, another independent organization, such as NIFS, should decide this.

Questions and topics posed to witnesses:

• Forensic Standards: The question of scientific or forensic evidence not up to standard being admitted in court was broached. In this case, the jury needs to be told not that something 'matches' or 'is consistent,' but how certain that match is proven scientifically (be it 1 in 10 or 1 in 1000). There is currently no meaningful scrutiny of forensic science disciplines. We need fix this problem of forensic sciences standards before it gets to court.
• DNA Evidence: The cost of DNA collection, as it becomes more affordable, and what this means in the legal arena was discussed. There are methods lending themselves to automation where there are efficiencies of scale and less chance for manipulation errors with people. With robotics we can use smaller samples, but there is a caveat, with smaller and smaller samples and higher sensitivity, there is the consequences of unintended DNA being picked up.
• Fingerprints: The question of the scientific validation of fingerprints was broached. There is an enormous amount of data behind it – automated systems are used nationally and internationally, and they are highly effective in distinguishing people. What may be lacking is putting some of the information into a form that meets rigorous scientific validation. Validation studies may provide new information on the limits or extent of fingerprinting as a validated scientific discipline. With fingerprinting, there are a number of ridge details, but no one has mapped those details and given a statistical supportable conclusion saying that a certain amount of ridge matches is this quantifiably strong of a match, and to compound issue, with fingerprinting there might not be nice clean print to match with. After validation studies are done, there is no doubt that the underlying science will be found to be valid, but the application by individuals may be a different issue. The question of varying points of comparison standards in different jurisdictions was also discussed. The problem lies with an inflexible and uniform standard. Whereas a 5 point print could be relatively unique and ultimately be a better identification than another 9 point comparison, if the 9 point comparison is the standard in that jurisdiction, the 5 point print may not be admissible. Setting up artificial standards like these for the scientific community can deprive the jury of certain probative evidence.
• Terminology: There is a question of how an agency such as NIFS can handle using scientific and forensic terms of art and how this language will be used in court. The NAS report says there is a need a scientific basis for how these words are used, and data is needed to find out how common a certain class characteristic is, and only then can it be reported to the jury. NAS says terms like 'match' and 'similar to' should be eliminated in favor of science based testimony, like we use for DNA.
• NIFS: Witnesses were asked to respond to the NAS report claim that NIST is not seen as adequately a leader by scientists and scholars. NIST played a significant role in DNA development and still does; it also teaches and passes along technology to others. NIST was involved in the optimization of automated fingerprint systems and automated firearms ID systems, and developed standards for many fields and clinical applications. NIST also produced traceability standards used at quality management in many labs.
• DNA Exoneration: The statistic that only two people convicted since 2004 have been exonerated by the Innocence Project was posed to the witnesses. Because it takes the average client 5 or 6 years before exoneration, one wouldn’t expect people from just 5 years ago to make it into the cycle yet because of the current backlog of almost 2000 cases. DNA is only available in a small amount of violent crimes, and other forensic disciplines are used in these cases, and these disciplines are not as robust or reliable as DNA, and the object is to make them better and more reliable.
• Forensic Science and Geography: The idea of certain places having better forensic science practices than others, such as from one community to the next, was discussed. Some laboratories may be better than others; certainly laboratories get better from when they begin the process of accreditation to when they actually get accredited. If there is a difference in the quality in laboratories, this usually deals with funding, such as how much money they put into training. States such as Texas, New York and Virginia have set up oversight commissions to review forensic disciplines, but a single entity nationwide to set up overarching standards may be needed.
• Gatekeepers of Forensic Evidence: Discussion of the question of who are the forensic gatekeepers in the legal setting. When looking at setting up methodologies, SWGs are good starting place because they have expertise in specific areas. Accreditation bodies are responsible for accrediting laboratories who utilize approved methods, while approved certifying bodies set the credentials of individuals. The role of a federal entity is to make sure all these things are working in tandem.
• Coverdell Improvement Program: The Coverdell Forensic Science Improvement program was discussed. To be eligible for funding under Coverdell, a lab must be accredited or working towards its accreditation. In New York it has helped labs update systems and comply with standards. Now that elements are in place to work on them, centralized coordination to guide the system and funding support to drive the system is required.
• Funding: The question of funding and how much it would take to eliminate backlogs and improve technology was discussed. There are some things you can put dollar figure on, but not on how much people or how much equipment is needed. The easiest things to quantify this way are training and certification. The cost of accreditation is about $10,000 per site and there are about 11,000 sites, making the cost $110,000,000. Training costs are about $5000 to train one person at each of the 11,000 sites, making this cost $55,000,000.
• CBLA (Bullet lead analysis): The FBI looked at elements in a particular batch of lead and compared it to a bullet in evidence, if a consistency between the elements of both bullets was found, this was used as forensic evidence in court. Now some studies have shown this technology might not support this conclusion. The science is believed to be sound, but the conclusions drawn from the analysis were not accurate. One needs to understand what it means to be 'consistent' and needs to make this terminology clear to a lay person.